Petition — Kelly v. United States

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rt, U.S.

83-308 PILED

AUG 25 1983

No. 83. NENT ey ace i STEV AS,

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1983

RICHARD KELLY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

ANTHONY S. BATTAGLIA, Esq.

STEPHEN J. WEIN, Esq.

RICHARD KELLY, Esgq., of Counse!

BATTAGLIA, Ross, HASTINGS,

Dicus AND ANDREWS

980 Tyrone Boulevard

Post Office Box 41100

St. Petersburg, Florida 33743

(813) 381-2300

Attorneys for Petitioner

PRESS OF BYRON 8S. ADAMS PRINTING, INC., WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

1. Where government officials originate and design

the crime charged and induce the Defendant, a person

otherwise innocent, to commit the offense, is such con-

duct so outragous that due process principles would bar

the government from invoking the judicial process to

obtain a conviction?

2. Is it necessary that the aforementioned conduct of

government officials involve “the infliction of pain, vio-

lence, or brutality to the person, or coercion” in order for

their conduct to be so outrageous that due process princi-

ples would bar the government from invoking the judicial

process to obtain a conviction?

3. Is “virtue testing” or “prosecution for the sake of

prosecution” by federal law enforcement officials, as a

part of the process of manufacturing crime, where no

crime or criminal design existed prior to the action of the

government officials, a violation of the due process rights

of the subject of the test and does it constitute conduct so

outrageous that it would bar the government from invok-

ing judicial process to obtain a conviction?

4. Isthe public policy consideration the same in a case

where government officials are conducting their activi-

ties in connection with existing or ongoing crime that

antedated their activity, as in a case where there was no

crime prior to the action of the officials and the Defendant

was an otherwise innocent person?

5. Where a question regarding a ruling of the lower

court is essential to the disposition of an appeal on a

constitutional point urged by an appellee, and appellant is

not contesting appellee’s contention regarding the ruling

of the lower court, may the appeals court refuse to re-

mand on the assumption that the lower court did not rule

as the parties contend?

6. Where Federal law enforcement officials were en-

gaged in the “manufacture of crime” or “virtue testing,”

where no crime or criminal design existed, used a con-

victed felon and professional con man to whom they prom-

ised “big money” and used him to design the crime to be

created and the scheme for testing the subject to be

tested and to recruit and “steer in large part” other con

men to assist in the scheme and the government gave him

great discretion to select the evidence he preserved on

audio tape and placed no limits on the inducements he

could offer or use as a goad in recruiting or managing the

other con men used to bring the Defendant into the

scheme for “testing,” and the government used prejudi-

cial pretrial statements from high officials and released

video tapes, exclusively in their control, to the media

prior to the trial, does this constitute conduct so out-

rageous that due process principles would bar the govern-

ment from invoking the judicial process to obtain a convie-

tion?

7. Are Federal officials authorized to engage in “vir-

tue testing, "or the “manufacturing of crime,” on the basis

that “public servants” are “plagued by the frailties of

human nature,’dishonest public officials . . . may cause

grave harm to our society” and official corruption is “diffi-

cult to detect” where the government produced no evi-

dence showing ongoing or existing crime or that the de-

fendant was engaged in crime or had a criminal design

prior to the government's activity or inducement?

ili

TABLE OF CONTENTS

age

CO By ys) SY eRe ls Sm i

FM Oe dat CTR ois oso coo os xo a ee Vv

PINRO IN iss eh oi ec bcccedoeec eee l

BUMMONIIE o6 6k circ cr bad be ha Ne as cua es 2

CONSTITUTIONAL AND STATUTORY Provisions INVOLVED 2

RRSINS OF TRE CAB soon ohn eahexclawce 2

REASONS FOR GRANTING THE WRIT ...........ecceece. 4

Il,

ITI.

lV,

The Decision Of The Court Of Appeals Reverses The

Opinions Of This Court Because It Approves The

Police Techniques Used In The Instant Case Merely

On Grounds That The Class Of Crime Charged Is

Declared Hard To Detect Without Regard To The

Lack Of Evisting Crime Or Criminal Design. .

The Appellate Court Reverses Decisions Of This

Court By Authorizing “Virtue Testing” And

“Prosecution For The Sake Of Prosecution” On The

Grounds That The Classification Of The Crime In-

volved Is Difficult To Detect Without Regard To The

Lack Of Existing Crime Or Criminal Design. ...

The Court fy 00 Misa 2 Boe The Decisions Of

This Court In Russell And ampton By Applying

Them To The Instant Case Which Has A Fotally

Different Factual Base Involving No Pre-existing

Crime, Criminal Design Or Predisposition And

Thus A Different Public Policy Control. ........

The — Court Misapplies The Opinions Of

This Court And The Public Policy Control Thus

Established By Holding That In Order For The Due

Process Defense To Apply It 1s Required That The

Conduct Of The Government Agents Must Include

Coercion Or Brutality. .......0cccccccccsuccs..

. The Court Of Appeals Reversed The Law And Public

Policy Established By This Court, By Failing To

Apply Due Process Principles To The Instant Case

Because The Conduct Of The Government Did Not

Include Physical Coercion. 0... .cccccccccuces.

Table of Contents Continued

Page

VI. The Court Of Appeals In Refusing To Remand So As

To Ascertain The Scope Of The District Court's Rul-

ing Departed From The Accepted And L’sual Course

Of Judicial Proceedings, 6.06 ccccevenncceses: 12

VII. The Appellate Court In Its Opinion Stated It Lacked

Guidance To A More Dynamic Definition Of Outra-

eousness As It Applies To The Instant Facts And

Were Therefore “Constrained” To Rule As They

a Pee ceri a ites dataleicckicnl vaccines as 13

RA ic Fetes be ees ae re 14

TABLE OF CITATIONS

CASES: Page

Carter v. Stanton, 405 U.S. 669 CE et ee ee 12

Hampton v. United States, 425 U.S. 484 ,

GOON ag sen dccn cece enc: 4, 5, 6, 7, 8, 10, 13

Miranda v. Arizona, 384 U.S. 436 (FE etic oe 10, 11

Rochin v. California, 342 U.S. 165 (1952) ....... 9, 10, 13

Sherman v. United States, 356 U.S. 369

CIN ewe ie 4,5, 6, 7, 8, 9, 10, 11. 13

Sorrells v. United States, 287 U.S. 435

CE xen ee 4,5, 6, 7, 8, 9, 10, 11. 13

United States v. Jannotti, 673 F.2d 578 (3d Cir. 1982) 5.7

United States v. Kelly, 539 F.Supp. 363 (D.C,

setae es, AR EE PC SONNE AS 1, 3, 6, 8, 10

United States v. Kelly, 707 F.2d 1460 (D.C. Cir,

seco GC ae i TN eer ear L436

United States v. Russell, 411 U.S. 423

te, EEE OED Che DOE mes Sd 4, 5, 6, 7, 8, 9, 10, 13

United States v. Twigg, 588 F.2d 373 (3d Cir. 1978) .. 9

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-

RICHARD KELLY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

Petitioner Richard Kelly respectfully prays that a writ

of certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the District of

Columbia entered in this case on June 27, 1983.

OPINIONS BELOW

The opinion of the court of appeals reversing the dis-

trict court is reprinted as Appendix A and is reported as

United States v. Kelly, 707 F. 2d 1460(D.C., Cir. 1983), A

timely petition for rehearing was denied on June 27, 1983,

in an order reprinted as Appendix B. The Order of the

district court granting Defendant's motions for judgment

of acquittal and to dismiss the indictment filed May 13,

1982, is reprinted as Appendix C. The opinion of the

district court granting said motions is reprinted as

Appendix D and is reported as United States v. Kelly, 539

F. Supp. 363 (D.C. 1982).

JURISDICTION

The timely petition for rehearing was denied on June

27, 1983. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

United States Constitution

Amendment V

“No person shall... be deprived of life, liberty, or

property, without due process of law; .. .”

STATEMENT OF THE CASE

The Petitioner was tried and the jury returned a ver-

dict of guilty. Prior to the trial the Defendant filed a

motion to dismiss the indictment on due process grounds.

The district court deferred ruling on this motion until

after the trial. After the trial this motion was renewed

along with a renewed motion for a judgment of acquittal

on various grounds including entrapment as a matter of

law. The Petitioner also filed a posttrial motion for a new

trial.

The trial court entered its order of May 13, 1982, (App.

C) granting the judgment of acquittal and dismissing the

indictment and filed a memorandum opinion (App. D). No

ruling was made on the Petitioner’s motion for new trial.

In summary, the trial court found that government

conduct as it affected the Petitioner was not the generally

accepted carefully devised and supervised covert opera-

tion. Rather legal and illegal bait was used to persuade

the Petitioner through the use of middlemen. The district

court found that the government had no reason to believe

that the Petitioner was responding to the illegal bait and

that the sole objective of the operation was virtue testing

or prosecution for the sake of prosecution, patently un-

acceptable. L’nited States v. Kelly, 5389 F. Supp. at 371-

373.

The government appealed. The Petitioner then filed a

motion to dismiss the appeal on the ground that the

government’s appeal constituted double jeopardy. The

Petitioner based this motion in part on the ruling of the

trial court that as a matter of law the Petitioner had been

entrapped. The government did not contend the district

court had not so ruled. In its brief filed before the appel-

late court the government in fact stated:

Nevertheless, the court found that Kelly initially had

spurned the offer, that there was no ‘credible evi-

dence’ that his rejection was insincere, and that the

—_— thereafter engaged in ‘repeated urgings’

(App. 30, 35) that resulted in his acceptance of the

bribe. It is hard to conceive of a case in which the

court more clearly substituted its own view of the

evidence for the facts as found by the jury.

Remarkably, the court did so without professing to

disturb the jury’s finding with regard to entrapment.

Gov. Brief pp. 39-40.

Further, the government noted that:

It is not free from doubt, however, wnether the court

was not in fact finding entrapment as a matter of law.

The court both dismissed the indictment and acquit-

ted Kelly. While at some places in its opinion it

treated the issue of predisposition—the central ques-

tion under entrapment—as irrelevant (“({t]he

statutory scheme precludes even the predisposed

from committing the crime under real-world cireum-

stances after the target makes one refusal” (App.

35)), its due process ruling rests squarely upon a

determination that Kelly rejected the bribe offer

initially and succumbed only after repeated induce-

ment. Gov. Brief p. 40, fn. 30. (emphasis in original)

Nevertheless, the appellate court concluded the district

court had ruled only on the question of due process and

denied Petitioner's motion to dismiss the appeal and re-

fused to remand the case to the trial court to resolve this

question concerning the lower court's ruling. United

States v. Kelly, 707 F. 2d at 1468 fn. 48 (MacKinnon); 1474

fn. 3 (Ginsburg) (App. A).

Portions of two separate opinions by che panel of the

court of appeals comprised the court's decision. The

majority of the court predicated its decision not upon a

rejection of the findings of the trial court concerning

virtue-testing or prosecution for the sake of prosecution,

Rather the court of appeals found as a necessary element

of the due process defense that there be physical coercion

or brutality. United States v. Kelly, 707 F. 2d at 1476

(Ginsburg). Therefore, the court felt constrained to re-

verse. /d. 1477 (Ginsburg).

This Petition timely followed after the court of appeals’

denial of Petitioner's Motion for Rehearing and Sugges-

tion for Rehearing En Banc.

REASONS FOR GRANTING WRIT

I. The Decision Of The Court Of Appeals Reverses The Opin-

ions Of This Court Because It Approves The Police Techni-

ques L’sed In The Instant Case Merely On Grounds That

The Class Of Crime Charged Is Declared Hard To Detect

Without Regard To The Lack Of Existing Crime Or Crimi-

nal Design.

The court of appeals, in direct conflict with the opinions

of this Court, in Sorre//s v. United States, 287 U.S. 4385

(1932); Sherman v, United States, 356 U.S. 369 (1958);

United States vy, Russell, 411 U.S, 423 (1973); and Hamp-

ton v. United States, 425 U.S. 484 (1976), held that the

mere fact that a class of crime is declared difficult to

detect, justifies the involvement of police officials in the

manufacture of crime to the extent that they were in-

volved in the instant case, L’nited States v. Kelly, 707 F.

2d at 1474 (MacKinnon).

This Court in Sorre//s held that the authority to use

such police activity was “given for the purpose of dletect-

ing and punishing crime .. . to reveal the criminal ce-

sign.” Jd. 441-442. This Court did not sanction such his-

torically dangerous police activities simply because a par-

ticular class of crime was declared difficult to detect. The

authority is given because crime e.r/sts and poses a threat

to the public and may be otherwise difficult to detect.

The existence of crime or criminal design prior to the

actions by the police is an essential basis for the use of

such police authority. Otherwise this Court in Sorre//s,

Sherman, Russell and Hampton, would have authorized

the use of such police activity for virtue testing and as a

device for the creation of crime. The control this estab-

lished was a balance between protecting the public from

lawless and dangerous police activity, United States v,

Jannotti, 673 F, 2d 578, 612-613 (3d Cir, 1982), (en banc)

and making such police techniques available to protect

the public on a need basis.

The existence of crime is the safeguard. If the crime

does not exist, the public has no need for this “protection”

which infringes on individual rights. The policy this Court

established in Sorrel/s, Sherman, Russell and Hampton,

imposed at least the burden of finding crime or ciminal

design if it did not require knowledge of its existence

before such techniques (creation of crime) were com-

menced.

The precedent established by the decision of the court

of appeals, provides that if the police can argue that a

particular class of crime is difficult to detect, they can use

the power and resources of government to induce crime

and then justify the conduct by the crime they create.

This Court has not recognized such a rule, which is abhor-

rent to our system of justice and contrary to the prior

decisions of this Court.

Il. The Appellate Court Reverses Decisions Of This Court By

Authorizing “Virtue Testing” And “Prosecution For The

Sake Of Prosecution” On The Grounds That The

Classification Of The Crime Involved Is Difficult To De-

tect Without Regard To The Lack Of Existing Crime Or

Criminal Design.

The court of appeals reversed the opinions of this Court

in Sorrel/s, Sherman, Russell and Hampton, by justify-

ing the police action in the instant case on the basis of the

crimes the government created as opposed to crimes the

government revealed. The appellate court literally

washes away all of the struggle of this Court in its opin-

ions to balance the various public needs. In Sorre//s, the

Court held when no crime existed and the government

uses its power to create crime, there is a “gross abuse” of

the government’s power. /d. 441. In Sherman, the Court

held that such police conduct is as inconsistent with the

law as the “coerced confession or the unlawful search.”

Id. 372.

The trial court in the instant case found that the federal

government manufactured the crime and that they en-

gaged in “virtue testing” or “prosecution for the sake of

prosecution.” L’nited States v. Kelly, 5389 F. Supp. at 373.

The court of appeals justified the dangerous techniques

used by the police in this case on the basis that the police

were successful in creating a crime, that the classification

of the crime was declared “difficult to detect” and that the

police did not beat the petitioner or commit brutality to

his person. The requirement of Sorre//s that such techni-

ques be used only to reveal existing crime went by the

way.

In addition to being illegal, “virtue testing” causes

other due process concerns as: such tests are not given to

all individuals; such tests are not all administered equally

or uniformly; all individuals subjectively are not on an

equal footing to take the test: and the surrounding cir-

cumstances in which the test is administered are not

equal.

By condoning the government's conduct on the basis of

alleged difficulty in detection the court of appeals totally

ignored the decisions of this Court.

III, The Court Of Appeals Misapplied The Decisions Of This

Court In Russell And Hampton By Applying Them To

The Instant Case Which Has A Totally Different Factual

Base Involving No Pre-existing Crime, Criminal Design

Or Predisposition And Thus A Different Public Policy

Control.

The decision of the court of appeals is in direct conflict

wit’ the public policy established by this Court in Sor-

rells, Sherman, Russell and Hampton. This Court estab-

lished where predisposition existed and where crime ex-

isted, as in Russel/, or the criminal design existed, as in

Hampton, that the underlying public consideration was

the protection of the public from crime as opposed to the

police methods employed. In the circumstances where

there was no crime or criminal design existing in advance

of police activity or police inducement, as was the case in

Sorrells and Sherman, the public was to be protected

from what has been historically recognized as dangerous

police methods. Jannotti, supra, at 612-613,

It is this public policy distinction that is the reason for

the different result between Sorrel/s and Sherman onthe

one hand and Russel! and Hampton on the other.

This Court in Russe// said:

Nor does it seem particularly desirable for the law to

grant complete immunity from prosecution to one

who himself planned to commit a crime, and then

committed it, simply because government under-

cover agents subjected him to inducements which

might have seduced a hypothetical individual who

was not so predisposed. /d. 434.

The result of this passage is to establish the public policy

sequel to Sorrells and Sherman. In Russe/!, the public

need was protection from crime planned and executed by

the defendant and the balance of due process tilted in

favor of such governmental activity for the protection of

the public.

In the instant case, the government urged, and the

decision of the appellate court makes it the law, that ifthe

crime is declared difficult to detect, the balance of public

need established by this Court is to be ignored. The

principle in Russe// thus is applied to a dissimilar factual

situation.

In the instant case, the government did not produce

evidence of bad character, as was the case in Sorrel/s,

evidence of prior convictions of the sam» vrime, as in

Sherman, or that another crime or criminal design ex-

isted, as in Russell and Hampton.

The government in the instant case used the most

elaborate scheme, designed and “steered” by a profes-

sional con man, United States v. Kelly, 707 F. 2d at 1474

(Ginsburg), and nearly One Hundred Million Dollars iu

inducements to cause the Petitioner to do an otherwise

legal act by promising to perform a routine public service

that was available to all of the public on a walk-in basis.

(Tr. 2658, 2660, 4120-1). This is the bald “manufacture of

crime” or “prosecution for the sake of prosecution,”

United States v. Kelly, 589 F. Supp. at 373 and 376 and

directly contrary to the public policy control and law

established by this Court.

IV, The Appellate Court Misapplies The Opinions Of This

Court And The Public Policy Control Thus Established

By Holding That In Order For The Due Process Defense

To Apply [tls Required That The Conduct Of The Govern-

ment Agents Must Include Coercion Or Brutality.

The decision of the court of appeals, holding that in

order for police conduct to be so outrageous that due

process principles would bar the government from invok-

ing judicial process to obtain a conviction requires coer-

cion or brutality, is in direct conflict with the opinions of

this Court.

The public policy balance required this result in Russel!

for the reasons stated by the Court at 434. For the appel-

late court to use the passage in Russell which cites

Rochin v. California, 342 U.S. 165 (1952) at 431-432, is to

distort the opinion and create conflict and injustice by

failing to consider the totally different factual setting and

public policy control involved. Requiring the existence of

coercion is even worse, under the facts of the instant case,

than would have been the situation if the due process

issue had been raised before this court in Sorrells or

Sherman and the court had held “absent coercion or

brutality to the person” we approve or permit such police

conduct.

The decisions of this Court clearly do not contemplate

the standard created by the court of appeals. Such a

standard was not argued by the government below. In

United States v. Twigg, 588 F. 2d 373 (3d Cir. 1978), the

Third Circuit following this Court's precedents allowed

the due process defense without any coercion or brutality

existing.

The analysis of the court of appeals in the present case

is clearly faulty and but for this faulty analysis the court of

appeals would have affirmed the trial court’s dismissal.

V. The Court Of Appeals Reversed The Law And Public Poli-

cy Established By This Court, By Failing To Apply Due

Process Principles To The Instant Case Because The Con-

duct Of The Government Did Not Include Physical Coer-

cion,

The decision of the appellate court is in conflict with the

opinion of this Court in Sorre//s, Sherman, Russell,

Hampton and Miranda vy. Arizona, 384 U.S. 436 (1966),

The court of appeals relied on the reference to Rochin in

Russell at 431-432. This Court in Russe/! set forth the

reason for a demanding standard under the facts of that

case, /d, 434. Since this rationale would not apply to the

facts in Sorre//s nor the instant case, the holding would be

different under the Sorre//s’ facts and likewise here.

Sherman held that when police officials engaged in the

manufacturing of crime, their activity becomes “as objec-

tionable as the coerced confession.” /d. 371. This Court

held in Wiranda that police tactics used to obtain a con-

fession or statements against the interest ofan in custody

defendant, constituted psychological coercion. Jd. 448,

The police tactics described in .W/randa and the tactics of

the agents here are remarkably similar; from the isolation

of the target one on one to the opening statement of the

agent to Kelly, that he assumed that Kelly would take the

money when the agent had just been told that Kelly would

not take the money, that Kelly had refused it and would

do as they asked as a favor, United States v. Kelly, 539 F.

Supp. at 638; and the effort of the officials to minimize the

wrongdoing they were inducing by emphasizing the vir-

tue of the Arabs to be given immigration help, picturing

the Arabs as political refugees who had done no wrong

and as business people who would invest vast amounts of

capital in the United States, and, telling the Petitioner

that he did not trust the agents if he did not accept the

money and the use of con men could have no purpose but

to use psychology and trickery to create the crime.

There can be no doubt regarding the result if the police

had used a psychologist or a con man to obtain a con-

fession in Miranda. When the factual setting here is all

considered in the atmosphere of repeated offers and

promises of One Hundred Million Dollars with more to

come from the association with the Arabs, psychological

coercion clearly and overwhelmingly existed.

Considering this Court held that such police conduct as

was shown in Sorrel/s, constituted “a gross abuse of

authority.” /d. 441, it is not reasonable to assume coer-

cion woud have been required by the facts in Sorre//s or

Sherman if the due process issue had been raised. Nor

should there be such a requirement here. If this be

wrong, certainly brutality to the person would not be a

requirement. The tactics and the quality of the “stealth

and strategy” practiced by the officials in the instant case,

that caused this Court to equate the creation of crime by

officials with the “coerced confession” was such that the

rationale of Wiranda would prevail and such psychologi-

cal coercion as existed would support the due process

defense,

No authority has been cited by the appellate court or

the government where there was no crime or criminal

design prior to the government's involvement, similar to

the facts in Sorre//s, or the facts in the instant case where

the crime was manufactured by the government, and the

defendant was denied relief.

VI. The Court Of Appeals In Refusing To Remand So As To

Ascertain The Scope Of The District Court's Ruling De-

parted From The Accepted And Usual Course Of Judicial

Proceedings.

The order of the trial court granted both the Petition-

er’s motions to dismiss for due process violations and for

judgment of acquittal. App. C. The government in its

brief below conceded that it at least appeared that the

Petitioner’s motion for judgment of acquittal had been

granted on the trial court’s finding of entrapment as a

matter of law.

Despite this the court of appeals held that the trial

court had not ruled on the motion for judgment of acquit-

tal as to entrapment as a matter of law. The Petitioner

requested that the court of appeals remand to the trial

court for a determination of the scope of its ruling. This

request was errroneously rejected. If there is some lack

of clarity in the actions of the trial court the cause should

be remanded. See, Carter v. Stanton, 405 U.S. 669, 671

(1972).

The face of the trial court's order notwithstanding, the

appeals court determined how the trial court ruled even

though this was contrary to how even the litigants per-

ceived the ruling.

The necessity to remand to the district court was clear-

ly apparent. To ignore this necessity was to depart from

the accepted and usual course of judicial proceedings. The

appeals court failed to give the trial court the recognition

it and its decision are required to be given. Our judicial

system would fall and quickly disintegrate if a reviewing

court could ignore the ruling of trial courts or substitute

its interpretation of the trial court's ruling for what the

record clearly establishes.

VII. The Appellate Court In Its Opinion Stated It Lacked

Guidance To A More Dynamic Definition Of Outrageous-

ness As It Applies To The Instant Facts And Were There-

fore “Constrained” To Rule As They Did.

Perhaps the most compelling reason for granting the

writ is the clear request to this Court for “a guide to a

more dynamic definition of outrageousness” as it applies

to cases where ongoing crime does not exist as in Russel,

United States v. Kelly, 707 F. 2d at 1476 (Ginsburg).

Lacking a better guide, the appellate court felt “con-

strained” to take the view that Russe// and Hampton

have foreclosed the use of a due process defense unless

there is coercion and brutality to the person predicated on

the authority of Rochin as cited in Russel/. The court of

appeals held that this inflexible rule applies even in a case

where the crime was created by police action as in Sor-

rells and Sherman and the instant case and without re-

gard for the fact that this Court has held that such police

conduct is a “gross abuse of authority,” Sorre//s at 441,

and as objectionable as the “coerced confession” in S/er-

man at 372.

The appeal court’s standard, in fact, erases the due

process defense by transforming it into the defense of

coercion. This is clearly erroneous.

CONCLUSION

For the reasons set forth in the Petition it is respectful-

ly prayed that a writ of certiorari should issue to the

Court of Appeals for the District of Columbia Circuit.

Respectfully submitted,

ANTHONY S. BATTAGLIA, Esa.

STEPHEN J. WEIN, Esa.

RICHARD KELLY, Esq., of Counsel

BATTAGLIA, ROss, HASTINGS,

DicuUs AND ANDREWS

980 Tyrone Boulevard

Post Office Box 41100

St. Petersburg, Florida 33743

(813) 381-2300

ATTORNEYS FOR PETITIONER

APPENDIX

APPENDIX A

United States Court of Appeals,

District of Columbia Circuit.

No. 82-1660.

UNITED STATEs of America,

Appellant,

Vv.

Richard KELLy.

Argued Jan. 11, 1983.

Decided May 10, 1983.

Before ROBINSON, Chief Judge, MacKINNON and GINS-

BURG, Circuit Judges,

Opinion Per Curiam.

Separate Opinion filed by Circuit Judge MacKINNON,

Separate Opinion filed by Circuit Judge GINSBURG.

PER CURIAM:

Judge MacKinnon files an opinion in Parts I, II, IICA) and

IV of which Chief Judge Robinson concurs. Judge Ginsburg

files an opinion in which Chief Judge Robinson concurs. Thus

Parts I, II, III(A) and IV of Judge MacKinnon’'s opinion

together with Judge Ginsburg’s opinion constitute the opinion

of the court. The judgment appealed from is reversed, and the

case is remanded to the District Court with instructions to

reinstate the indictment and the verdict of the jury, and for

further proceedings.

MacKINNON, Circuit Judge.

The Federal Bureau of Investigation, in an effort to recover

stolen art and securities, set up an undercover operation—

“Abscam"—designed to catch red-handed those who dealt in

such items. In due time the FBI was led to alter the character

of the operation to target some government corruption. There-

after several highly placed local, state and national govern-

ment officials were indicted and convicted. This appeal in-

volves one United States Congressman.

On January 8, 1980, Congressman Richard Kelly accepted

$25,000 from an agent of the FBI who was posing as a repre-

sentative of two wealthy Arabs as part of the FBI’s elaborate

Abscam investigation. In return, Kelly agreed to use his posi-

tion in Congress to assist the Arabs to become permanent

residents of the United States. Unbeknownst to Kelly, the

FBI recorded the entire illegal transaction on video tape.

On the basis of this and other evidence, Kelly and two other

individuals, Eugene Ciuzio and Stanley Weisz, were charged

with conspiracy to commit bribery, in violation of 18 U.S.C,

$ 371 (1976), bribery, in violation of 18 U.S.C. § 201(¢) (1976),

and interstate travel to commit bribery, in violation of 18

U.S.C. § 1952 (1976). A jury found each defendant guitly on all

counts. However, the district court granted Kelly’s motion to

dismiss the indictment, entering a judgment of acquittal in his

favor, because it concluded that the FBI's actions in further-

ance of Abscam were so outrageous that prosecution of Kelly

was barred by principles of due process. United States v.

Kelly, 539 F.Supp. 363, 370-77 (D.D.C. 1982).'

Abscam was indeed an elaborate hoax, created by the FBI

with the assistance of a convicted confidence man to ferret out

corrupt public officials. Nevertheless, we conclude that the

government's conduct in Abscam did not reach that “demon-

strable level of outrageousness” which would bar prosecution

of the corrupt officials that were uncovered, particularly given

the difficulties inherent in their detection. Hampton v. United

States, 425 U.S. 484, 495, n. 7, 96 S.Ct. 1646, 1653 n. 7, 48

L.Ed.2d 113 (1976) (Powell, J., concurring). Accordingly, we

reverse the district court and remand with instructions to

reinstate the indictment and the jury’s verdict.

‘The district court granted a new trial to Ciuzio and Weisz. ("nited

States v. Kelly, supra, 589 F.Supp. at 377-78. Both were convicted

on all counts at their second trial.

I. FACTS

A. The Abscam Investigation

In the spring of 1978, the FBI's Long Island office began an

undercover investigation with the initial goal of recovering

stolen art and securities.“ The code name for this investigation

was “Abscam,” a name derived from Abdul Enterprises, the

name ofa fictitious FBI-created organization which ostensibly

represented two Arabs of considerable wealth interested in

“investing” in the United States.’ Convicted confidence man

Melvin Weinberg was enlisted by the FBI to assist in the

creation and operation of Abscam.* Weinberg played the role of

financial advisor to Abdul Enterprises, while FBI agents

“held” other positions in that organization.’ Beginning in Janu-

‘Trial Transcript (Tr.) at 1442-43, 1559-60, 3361-62, 3552,

‘Tr. at 3589-91,

‘From 1968 until 1976, Weinberg had operated an illegitimate

business known as London Investors. Weinberg, claiming to repre-

sent wealthy investors, promised to arrange louns in exchange for

“loan origination fees” paid in advance. Tr. at 1554-55, 1665-69, Of

course, Weinberg never arranged the loans, but rather absconded

with the fees.

Weinberg was arrested by the FBI in 1976 for his London In-

vestors activities and, in 1977, pled guilty to mail and wire fraud

charges brought in the United States District Court for the Western

District of Pennsylvania. Tr. at 1555, 1669-71. In exchange for his

cooperation in four organized crime cases, the FBI interceded on

Weinberg’s behalf before the district court. As a result. Weinberg

was sentenced to three years probation and permitted to return to

New York to assist the FBI. Tr. at 1555-57, 1673-74, 3546-51, There-

after, Weinberg assisted the FBI in Abscam, which was modeled

after his successful London Investors scheme. Tr, at 1690-93, 3552.

3589-91. Beginning in August 1978, Weinberg received $1000 per

month—raised in 1979 to $3000) per month—for nis Abscam work. Tr.

at 1028-30, 3546-51,

‘Tr. at 3374-75.

ary 1979, Anthony Amoroso, a special agent for the FBI,

assumed the role of president of Abdul Enterprises."

Initially, the FBI made it known on the streets that Abdul

Enterprises had money to invest and waited to be approached

with proposals.’ Abdul Enterprises turned away individuals

offering legitimate transactions, but maintained contact with

those suggesting illegal activity. In November 1978 Abdul

Enterprises was approached by two businessmen, William

Rosenberg and William Eden, concerning the possibility of

financing certain equipment to be leased to the City of Cam-

den, New Jersey. It appeared that the transaction would re-

quire payment of a bribe to Angelo Errichetti, then Mayor of

Camden.* Thereafter the focus of Abscam shifted to political

corruption and organized crime.’

On July 26, 1979, Mayor Errichetti, who had since been

introduced to the Abscam agents by Eden and Rosenberg,”

and Howard Criden, a Philadelphia lawyer and associate of

Errichetti, met with Weinberg and Amoroso on a yacht in

"Tr, at 1021-22, 3444-45,

"Tr. at 1690-92. As Weinberg explained, “we had a big honey pot

and all the flies came to it.” Tr. at 1691,

*Tr. at 1709-14, 3373-78,

'Tr, at 1442-43, 3458-59, In December 1979 Mayor Errichetti met

with the representatives of Abdul Enterprises and boasted that “he

could control” Atlantic City. He later indicated that a bribe of

$200,000 to $400,000 would guarantee a gambling license, Tr. at 1715,

3596-98, Errichetti ultimately /ed Abscam to a number of other

corrupt public officials. See United States v, Myers, 692 F.2d 823 (2d

Cir, 1982); United States v. Jannott), 673 F.2d 578 (3d Cir.) (en bane),

cert, denied, U.S. . 1028. Ct, 2906, 73 L. Ed.2d 1315 (1982),

In March 1979 Abscam uncovered corruption in the Immigration and

Naturalization Service. Tr. at 1252-53. See United States v, Alewan-

dro, 675 F.2d 34 (2d Cir.), cert denied, U.S. nc, 1088.Ct. 7,

74 L.Ed.2d 75 (1982).

“Tr. at 1209, 1443-44, 3458-59, 3597-98,

Florida to discuss financing for a proposed casino that a client

of Criden wished to build. During the day Amoroso and

Errichetti discussed the problems that might face the wealthy

Arabs who controlled Abdul Enterprises should an Iranian-

type revolution occur in their country and they sought to come

to the United States as permanent residents. Amoroso en-

listed Errichetti’s assistance in obtaining the “cooperation” of

public officials and suggested that money would be no problem.

Errichetti and Criden agreed and, on August 22, 1979, in-

troduced the Abscam agents to Congressman Michael Meyers,

who accepted $50,000 in exchange for his promise to assist the

wealthy Arabs.'' Thus was introduced the “asylum scenario"—

whereby members of Congress were paid bribes to ensure that

they would introduce private immigration legislation on behalf

of the wealthy Arabs if and when necessary—which ultimately

caught Kelly.“

B. Abscam’s Introduction to Kelly

On September 10, 1979, Weinberg met with Rosenberg and

sought his aid in locating politicians willing to assist his Arab

employers to become permanent residents of the United

United States v. Myers, 527 F.Supp. 1206, 1210-12 (E.D.N.Y.

1981), aff'd, 692 F.2d 823 (2d Cir. 1982); Tr. at 1748-51, 3463-68; Due

Process Transcript (Due Process Tr.) at 180-83.

There is some dispute as to who created the asylum scenario. The

district court concluded that it “was conceived—lock, stock, and

barrel—by Weinberg and made its first appearance on July 14, 1979.

." United States v. Kelly, supra, 539 F.Supp. at 366 & n. 10. See

Joint Appendix at 344, 354-67. The government, on the other hand,

asserts that Amoroso conceived of the asylum scenario on July 26,

1979, as he cruised by former Nicaraguan dictator Somoza's yacht.

Due Process Tr. at 180-81. Insofar as is relevant to this case, the

asylum scenario was the suggestion of a government agent—either

Amoroso or Weinberg—and not of Kelly.

States.'' Weinberg outlined the assistance required, indicating

that the Arabs would pay $25,000 to a member of the House of

Representatives and 350,000 to a member of the Senate for

their promise of future assistance. Weinberg suggested that

Amoroso would “talk one and one and make the guy safe” at the

time of the payoff.‘ In October 1979 Rosenberg related the

proposal to a business associate and accountant, Stanley

Weisz. Rosenberg told Weisz that the Arabs needed immigra-

tion assistance and that Weisz would receive a fee for the

proper introductions. ©

On November 22, 1979, Weisz, while on vacation in Boynton

Beach, Florida, met with his longtime business associate,

Eugene Ciuzio."” During their conversation, Weisz related the

Arabs’ need for immigration assistance to Ciuzio. Ciuzio re-

plied that he knew a congressman who might be willing to help

the Arabs and indicated he would check with him and get back

to Weisz." In fact, Ciuzio had never discussed immigration

“ Transcript of Meeting of Sept. 10, 1979, at 1-5, 7; Tr. at 890-92,

1088-92, 1443-44, 1565-66, 1570-71, 1740-44. Although Amoroso and

Weinberg suggested that Rosenberg “reach out” to politicians as

early as August 24, 1979, this was in the context of their request for

assistance in obtaining New York gambling licenses. Transcript of

Meeting of Aug. 24, 1979, at 7-s; Tr. at 1078-S0B. The asylum scenar-

io Was not mentioned to Rosenberg at the August meeting.

“Transcript of Meeting of Sept. 10, 1979, at 2-3, 7; Tr. at 891-92,

1090-92, 1570-71,

‘Tr. at 1488-89, 3851-53, 3953-55. Although Rosenberg in-

troduced Weisz to Amoroso and Weinberg at a meeting on Septem-

ber 12, 1979, the asylum scenario was not discussed with Weisz at

that time. Tr. at 886-87, 1569-70, 3942-43.

Ciuzio had referred a friend to Weisz for assistance in a federal

tax matter. The purpose of the meeting was to provide Weisz with

the details of that dispute. Tr. at 3855-63,

"Tr. at 1488-89, 3855-63, 3958-60, 4106-07,

matters with Kelly, having first met Kelly on October 1, 1979,

in an Orlando restaurant.

Ciuzio promptly arranged to meet with Kelly at the Tampa

airport on November 28, 1979. At that meeting Ciuzio told

Kelly that he had some Arab clients with immigration difficul-

ties and asked Kelly if he could help them. Kelly indicated that

his office handled such matters routinely and that he would be

glad to assist the Arabs, particularly since Ciuzio indicated

they might invest in his district.’’ Ciuzio informed Kelly that

he—Ciuzio—would receive a large fee if Kelly helped the

Arabs; Kelly told Ciuzio that the fee would cause no

difficulties.’ Ciuzio promptly called Weisz from the Tampa

airport and indicated that Kelly would be happy to help the

Arabs.

In mid-December 1979 Weisz informed Rosenberg of

Ciuzio's friendship with a Florida congressman who was will-

ing to help the Arabs.~ On December 16, 1979, Rosenberg

called Weinberg and told him that he had a “candidate” who

would assist with the Arabs’ immigration problems. Rosen-

berg indicated that the individual was a congressman from

Florida, that he wanted $250,000, and that payment would

have to be on “an escrow basis.” Weinberg suggested that the

Congressman be paid $25,000 down, with the balance paid

when legislation was required. Rosenberg agreed to set up a

meeting with the Congressman at Abdul Enterprises’ Wash-

"Tr, at 1995-97, 2022-24, 2610-15, 4099-102,

“Tr, at 2656-61, 2844-45, 4109-11, 4195-99. Kelly testified that

immigration problems were “handled as a staff matter.” Tr. at 2661,

Kelly had “no recollection or record that {he} was involved in any

[immigration] cases.” Tr. at 2660-61,

” Tr. at 2844-45, 4109-11, 4198-99. Kelly admitted that he also

discussed the amount of his indebtedness with Ciuzio. Tr. at 2844-45.

“Tr. at 3866-67, 3958-60, 4113-14.

“Tr. at 3869-72.

ington, D.C., townhouse on January &, 1980. Rosenberg

called Weisz and told him of Weinberg’s positive response.

Weisz gave Rosenberg Ciuzio's telephone number and agreed

to call Ciuzio to ask him to contact Weinberg.“ On December

17, 1979, Rosenberg again called Weinberg and explained that

Weinberg would be contacted by “a fellow by the name of Gino

(Ciuzio] who will handle all the arrangements for you and who

will give you the person.”

On December 19, 1979, Amoroso and Weinberg met with

Ciuzio in Hollywood, Florida, and explained the assistance

that would be expected of the Congressman.” Civzio indicated

that the individual was Congressman Richard Kelly and in-

timated that he and Kelly had had previous dealings of a

similar nature.” Ciuzio suggested that he told Kelly of the

offer and claimed that Kelly left the arrangements to him,

Ciuzio opposed direct payment to Kelly and suggested that the

money instead be escrowed through Weisz.~ Amoroso assured

him that a private meeting between Amoroso and Kelly would

protect the Congressman, and that the wealthy Arabs would

invest in Kelly's district to provide an explanation for Kelly's

* Transcript of Telephone Call of Dec. 16, 1979, at 5-9, 12-13.

“Trat 3869-72,

“Transcript of Telephone Call of Dec. 17, 1979, at 1.

” Transcript of Meeting of Dec. 19, 1979, at 11-12, 14, 22.

“Td, at 16, 38-39. Referring to Kelly, Cuizio asserted:

Not that I'll ever use it on em, of course, but I'm just saying uh

umm. He's in, Ya know, we were holdin’ hands for a long time,

now he's pregnant, ya understand, He's already takin’ money so

we're married and thats all,

Id. at 39 (emphasis added),

*Jd. at 16, 18-19, 26, 30, 34-35,

assistance.” Weinberg made it clear that the meeting and

payment of $25,000 was to assure the Arabs that Kelly

got the money [and] when we're ready to move that he is

gonna be with us. ”

Ciuzio agreed to “lay out the story” for Kelly. °

On December 21, 1979, Ciuzio telephoned Weinberg and

suggested aJanuary &, 1980, meeting with Kelly. Ciuzio reiter-

ated that he and Weisz did not want to have the money handed

directly to the Congressman. “ Weinberg insisted that Kelly be

directly involved in the transaction, but indicated that

(aJll he [Amoroso] wants the Congressman [to do] is to tell

him what he’s gonna do for him for the money. °

Ciuzio agreed, but requested that they use “the right script,

nice and soft."

On December 23, 1979, Ciuzio met Kelly at a restaurant in

Alexandria, Virginia, and explained the proposal. Ae//y test)-

fied that Ciuzio told him that

there were two Arabs that were going to come into the

United States and there was concern that they would have

an immigration problem, and that if they did, they wanted

to be assured that they would have some assistance froma

person with some authority and that in this connection, a

“Td, at 18-19, 34-35.

“Td. at 33,

"Td.

lier, Cuizio told Weinberg that he asked Kelly to call him from a

public phone booth “that would be safe,” rather than from his con-

gressional office, to discuss the transaction. Kelly did, in fact, call

Cuizio from a phone booth located a few blocks trom his home in

Virginia. Transcript of Telephone Call of Dec, 20, 1979, at 2; Tr. at

2685-86, 4265-70,

“Transcript of Telephone Call of Dec. 21, 1979, at 13.

41d,

l0a

representative of these Arabs was prepared to pay ahalfa

million dollars for this assistance. And that the arrange-

ments would be that the two Arabs may not come into the

country, but that their representatives wanted to have a

meeting.

They wanted to be sure that in the event they needed

something, that they would have established a rela-

tionship, a contact that would cause this assistance to be

available. And in this connection, that they would pay

$25,000 just as earnest money... / would receive $25,000

just for going to the meeting, and nothing would be ex-

pected of me, and then if at a later time there developed

that there would be some need, then I would be expected

to render this assistance and that J would receive at that

time an additional $100,000, and the rest of the money

was to be paid to [Ciuzio, Rosenberg, and Weisz]... .~

Ciuzio also told Kelly of the Arabs’ intention of investing

substantial sums in the districts of cooperative congressmen. ’

Kelly agreed to go to the meeting and give his assurances

that he would help the Arabs, despite the fact that Ciuzio,

Rosenberg, and Weisz would be paid as a result. However,

Kelly testified that he refused to accept money for doing so:

I would be glad to do it. But as far as my receiving any

money for doing it, I just simply didn't want to do that.

There wasn't any need to.

There was no problem. It was a standard procedure and

that I would not accept any money... I said... . I willdo

that. You can cand on me, I will go to the (hJouse and we

Will give these assurances to the representatives. .. .

I am glad to do this as a favor to you. If you want to do

something for me... I have got some real estate that I

— to sell and perhaps you can help me find a buyer for

tnat. '

® Tr, at 2663-64 (emphasis added). Cuizio denied that he told Kelly

of the proposal at their meeting, although his testimony was equivoe-

al. Tr. at 4126-31, 4302-05.

*Tr. at 2664-65.

"Tr. at 2665-66.

lla

C. Abscam’s Payoff to Kelly

Shortly after 10:00 p.m. on January 8, 1980, Kelly, Ciuzio,

Rosenberg, and Weisz arrived at Abdul Enterprises’ Washing-

ton. D.C., townhouse to meet with Weinberg and Amoroso.

Initially Weinberg met with Ciuzio, who vigorously sought to

disuade Amoroso from attempting to bribe Kelly directly. °

The two ultimately agreed that Kelly would acknowledge that

the money was in exchange for his agreement to assist the

Arabs, but that Ciuzio would actually take the money from the

meeting:

WEINBERG: You can be in with him, all right?

CIUZIO: Well I think I should be here to, ahh steer the

fing thing...

WEINBERG: Let him, let, just put the money on the

table and say here, take it. . . here, Congressman, here's

the twenty-five thousand and that’s it, you pick it up.

CIUZIO: Go along with that, he knows the answers too.

WEINBERG: All right, so...

CIUZIO: I rehearsed with him. '

After this conversation Kelly and Amoroso met privately.

Amoroso explained the Arabs’ immigration difficulties and

* Transcript of Meeting of Jans, 1980, at 1-11. Ciuzio said, ° ‘Don't

hand him no {ing money, don’t talk money, tell him what the

problem is... ." /d. at 3. Later Ciuzio and Weinberg had the follow-

ing exchange:

WEINBERG: Well, he knows he's getting money right’

CIUZIO: He ain't taking no f___ing money in his hand.

WEINBERG: All right, youl'll take it.

CIUZIO: All right.

WEINBERG: he'll hand it to you.

Id. at 4.

“Td, at 10,

12a

their willingness to pay to have “friends” in Congress when

required. He also indicated that the Arabs would invest in

their “friends'” districts in order to protect them from

pressure.*’ Kelly's response revealed that he was aware of the

purpose for the investments.

AMOROSO: Now I realize that ahh there's a possibility

that ahh if, if you were to introduce something like this,

that ahh, people would ask, well why is he doing it, va

known, Well what's the reason, now...

KELLY: I've got the reason.

AMOROSO: OK, what. . . wouldthatbe. . . investing?

KELLY: Sure.’

Kelly agreed to assist the Arabs, and, as recorded on the

video tape, indicated that Amoroso’s arrangement with Ciuzio

was fine:

All of this stuff that you've been talking about. . . / don't

know anything about that, I'm not involved with it...

Gino and these guys are my friend[s]. . . what you said

makes a lot of sense tome... . I'm gonnastick with ya. . .

and you can put me out there on the hill, and when you

come back in the morning, I'll still be there. ..Sothis...

will be helpful to me and... maybe. . . down the road

sometime, you can do mea favor. But in the meantime,

whatever these guys are doing is all right, but I got no part

in that... In other words, .. . your arrangement with

these people is... all fine... . [YJou have my assurance

that what you have told me here, sounds like a good thing

and... Iwill... stick by these people.“

After Amoroso received a call from Assistant United States

Attorney Jacobs who was monitoring the meeting and who

thought Kelly was being “cute,” and after Kelly conferred with

“Td. at 11-13.

"Td. at 12-13.

“7d. at 16 (emphasis added),

13a

Ciuzio,*’ Amoroso sought to clarify Kelly's position. Kelly

made it clear that he wanted the money given to Ciuzio:

KELLY: [YJouand I gotta. . . learn to talk to each other.

AMOROSO: Well I know...

KELLY: [DJon’t stumble around, jump in there. . .

AMOROSO: Jump in there and give it to you?

KELLY: Sure.

AMOROSO: Ok. I was under the impression... when

this thing was set up... that I was gonna give you

something... tonight...

KELLY: Yeah.

AMOROSO: Ok, and that the rest was gonna come. .

KELLY: Yeah.

AMOROSO: when you introduce that.

KELLY: That's right.

AMOROSO: Ok, is that, is that still...

KELLY: Yeah. Here's... what the thing is. Umm ahh

just simply deal with Gino [Ciuzio] about it.

AMOROSO: Ok. You want me to give him the money. . .

here?

KELLY: Sure.“

However, when Amoroso indicated that all of the money was

intended to go to Kelly, and that Ciuzio would be separately

compensated, Kelly was confused:

I understood that what you were talking about was .

all there was as far as Tony [sic, should be Ciuzio} was

concerned and so as far as I'm concerned, he takes that. . .

(BJut I see I didn’t know . . . about this other arrange-

ment.... It’s... all right but I didn't know about that.

So lets talk about it some.”

“Tr, at 1104-09, 1173-76, 1181-82, 1392-93, 1412-14, 2207-0s, 2870-

72, 4145-47.

* Transcript of Meeting of Jan. &, 1980, at 22-23.

® Td. at 24-26.

l4a

Amoroso explained that he thought that giving the money

directly to Kelly would avoid witnesses, thus protecting him.

Kelly agreed:

AMOROSO: I thought that the best way of doing it was

. a one on one between you and I. Now to me that

sounds like. . . if you're looking for security . . . the best

way of doing it.

KELLY: I think so too.”

Amoroso then gave Kelly $25,000 in cash and Kelly stuffed the

money into the pockets of his suit.’

I]. THE DISTRICT COURT DECISION

In ruling on Kelly's motion to dismiss the indictment and to

set aside the verdict of the jury, the district court acknowl-

edged the need for undercover investigative technique to de-

tect “diabolical criminal conduct so sophisticated as to be near-

ly impossible to detect,” but concluded that

as Abscam affected Kelly, it was not the type of carefully

devised and supervised covert operation generally ac-

cepted by the courts. In many respects it differed sharply

from traditionally accepted types of operations.

United States v. Kelly, supra, 539 F.Supp. at 371. The district

court complained that the asylum scenario was not triggered

by any suspicion of corruption in government and that, unlike

ordinary, passive sting operations, it utilized legal and illegal

bait promoted by a “recruiting agent” “to persuade the Con-

gressman to become a sting patron.” /d. The district court

concluded that the sole purpose of the asylum scenario was to

test the virtue of members of Congress. Jd. at 373.

* Td. at 26-27,

* Id. at 28-30,

l5a

The district court admitted its personal distaste for the

concept of law enforcement agencies testing the virtue of con-

gressmen, but held, assuming that such activities were proper,

the application of the testing procedures in this case pat-

ently exceeds the outer limits of any concept of fun-

damental fairness.

The litmus test—or temptation—should be one which

the individual is likely to encounter in the ordinary course.

To offer any other type of temptation does not serve the

function of preventing crime by apprehending those who,

when faced with actual opportunity, would become crimi-

nals. Instead, it creates a whole new type of crime that

would not exist but for the government's actions.

When improper proposals are rejected in these virtue-

testing ventures, the guinea pig should be left alone. /1

ordinary real life situations, anyone who would seek to

corrupt a Congressman would certainly not continue to

press in the tace ofa rejection tor fear of heing reported

and arrested, The FBI of course had no such restraints in

this case.

Id, at 373-74 (emphasis added) (footnote omitted).

The district court found that Kelly rejected the bribe offer at

his meeting with Ciuzio on December 23, that Ciuzio informed

the Abscam agents of that fact at the townhouse un January &,

and that Kelly initially rejected the bribe in his meeting with

Amoroso. /d. at 374. Accordingly, the district court concluded

that in the circumstances of this case, any further pursuit

and pressure on the part of government agents was noth-

ing short of outrageous. ... If the government had no

knowledge of Kelly doing anything wrong up to his rejec-

tion of illicit money, its continuing role as the third man in

a fight between his conscience and temptation rises above

the level of mere offensiveness to that of being “out-

rageous.” No concept of fundamental fairness can

accomodate what happened to Kelly in this case.

Id. at 376 (emphasis added).

III. ANALYSIS

A. The Due Process Defense

The district court concluded that the FBI's conduct in furth-

erance of Abscam was so outrageous that prosecution of Kelly

was barred by principles of due process. ** The Supreme Court

has recognized that there may be situations

in which the conduct of law enforcement agents is so

outrageous that due process principles would absolutely

* Kelly contends that the district court also held that he was

entrapped as a matter of law. Brief for Appellee at 74-78. Although

the district court did submit Kelly's entrapment defense to the jury,

Tr. at 4929-34, we do not interpret Judge Bryant's decision to hold

that Kelly was entrapped as a matter of law. Rather, our review of

the record reveals that the district court in fact thought that Kells

had not aggressively pursued his claim of entrapment. Tr. at 3294-95,

4417; Due Process Tr. at 70-71, 216. Judge Bryant recognized that it

would be difficult for a public official such as Kelly to pursue an

entrapment defense:

I know its tough for a man to come in and say, “Well, I got into

a situation and [ was overborne with temptation and I suc-

cumbed.” I know it’s tough for him to say that. This man is in

public life and that kind of thing.

Tr. at 3295. See also United States v. Kelly, supra, 539 F.Supp, at

377 n. 58. Furthermore, the mere fact that a judgment of acquittal

was entered in Kelly's favor does not indicate that the district court

ruled Kelly was entrapped as a matter of law. Kelly's own request for

a judgment of acquittal on due process grounds belies any such

assertion, Tr. at 1855A-55F; Due Process Tr. at 74. Accordingly,

there is no need to address Kelly's contention that the double jeopar-

dy clause of the Fifth Amendment prohibits the government's appeal

of the post-verdict, judgment of acquittal in this case. See generally

United States v. DiFrancesco, 449 U.S. 117, 130, 101 S.Ct. 426, 433.

66 L.Ed.2d 328 (1980); United States v. Singleton, 702 F.2d 1159 at

1161-1162 (D.C. Cir. 1983).

l7a

bar the government from invoking judicial processes to

obtain a conviction. ...

United States v. Russell, 411 U.S. 423, 431-32, 93 8.Ct. 1637,

1642-1643, 36 L.Ed.2d 366 (1973).* More recently, a divided

Court reaffirmed that due process principles might foreclose

prosecution of a predisposed defendant if the government was

excessively involved in his criminal activity. Hampton v.

United States, supra, 425 U.S. at 495, 497, 96 S.Ct. at 1652,

1653 (Powell, J., concurring) (Brennan, J., dissenting). How-

ever, Justice Powell, in his critical concurring opinion, stated:

I emphasize that the cases, /f avy, in which proof of

predisposition is not dispositive will be rare. Police

overinvolvement in crime would have to reach a demon-

strable level of outrageousness before it could bar convic-

tion. This would he especially dithicult to show with re-

spect to contraband offenses, which are so difficult to

etect in the absence of undercover Government involve-

ment....{Law) [e}]nforcement officials therefore must

be allowed flexibility adequate to counter effectively such

criminal activity.

Id. at 495, n. 7, 96 S.Ct. at 1653 n. 7 (Powell, J.. concurring)

(emphasis added),

* The Court cited Rochin v. Calitornvia, 342 U.S. 165, 728.Ct. 205,

96 L.Ed. 183 (1952), apparently as an example of the type of out-

rageous government activity which would bar prosecution under

principles of due process. In that case, the Court found that actions of

police officers, who broke into the bedroom of the defendant, at-

tempted to pull drug capsules from his throat, and, finally, forcibly

pumped his stomach to retrieve the capsules, violated due process.

Td. at 166, 172, 72S.Ct. at 206, 209. The Second Circuit has read this

citation to indicate that due process will bar a prosecution only if the

government's conduct directly invades some personal right of the

defendant. United States v. Alexandro, 675 F.2d 34, 40 (2d Cir), cert.

denied, —. U.S. —_., 103 S.Ct. 78, 74 L. Ed.2d 75 (1982); Archery.

Commissioner of Corrections, 646 F.2d 44, 46-47 (2d Cir.), cert.

denied, 454 U.S. 851, 102 S.Ct. 291, 70 L.Ed.2d 141 (1981),

lSa

Our task in this case, therefore, is to assess whether the

FBI's conduct in Abscam reached a “demonstrable level of

outrageousness,” while keeping in mind the difficulties in-

herent in detecting corrupt public officials. /d.; United States

v. Russell, supra, 411 U.S. at 432, 93 S.Ct. at 1643, Measured

against this standard, the FBI's conduct did not violate due

process.

B. Abscam

Abscam was indeed an elaborate hoax, involving a fictitious,

FBl-created corporation purportedly representing Arabs of

enormous Wealth, as well as the limousines, yachts, and lavish-

ly appointed residences necessary to make the hoax believable.

Yet stripped of these trappings of wealth, Abscam was no

more than an “opportunity for the commission of crime by

those willing to do so." United States v. Myers, 692 F.2d 828,

837 (2d Cir. 1982). Amoroso and Weinberg let it be known that

they would pay substantial sums of money to congressmen

willing to promise to assist the wealthy Arabs with their

immigration difficulties. Thereafter, the FBI operatives simp-

ly waited for the grapevine to work and to see who appeared to

take bribes. No congressmen were targeted for investigation;

rather, Abscam pursued all who were brought to the operation

by the grapevine.” In essence, then, Abscam was "of signifi-

cantly different from an undercover drug or fencing operation

» Tr, at 1096-98, 1237-39, 1255-57, 3656-58, 3726-28. However, not

all officials brought to Abscam were offered bribes. The Abscam

operatives recognized that they had no control over the representa-

tions made by intermediaries such as Ciuzio, Rosenberg, and Weisz.

Tr. at 1237-39, 3656-58. Accordingly, the FBI a/ways discussed the

asylum scenario with the officials prior to the offer of a bribe. Tr. at

3726-28, That was certainly the case with Kelly; Amoroso carefully

discussed the details of the asylum scenario with Kelly before any

bribe money was paid, See discussion at 28 /xfra. In one instance,

where his discussion revealed that the official was unaware of the

corrupt nature of the proposal, the FBI terminated the meeting. Tr.

at 1422-25, 3288-91.

19a

offering to buy from all who appear at its door.” Instead of

buying stolen goods or contraband drugs, Abscam bought cor-

’ The district court concluded that Abscam was unlike ordinary,

“passive” undercover operations because it used “recruiting agents”

to spread the word that bribes were available. ["nited States y.

Kelly, supra, 539 F.Supp. at 371. I disagree. I seriously doubt that

the government would establish an undercover drug or fencing oper-

ation without spreading the word, through informants and criminal

elements (labeled “recruiting agents” by the district), that its serv-

ices were available. The Abscam investigators did no more.

My colleagues term Abscam an extraordinary operation. /»fra, at

1474-1476, It was extraordinary only in the positions of some of the

individuals involved and in the intangible nature of the “commodity”

purchased. Otherwise, it is strikingly similar to ordinary undercover

operations. To conclude otherwise suggests a lack of familiarity with

changes in the law enforcement activities of the FBI since the death

of J. Edgar Hoover in 1972. Fina! Report of the Select Committee to

Study Undercover Activities of Components of the Department ot

Justice. S. Rep. No. 682, 97th Cong., 2d Sess. 39 (1982). Hoover was

an advocate of keeping FBI activities “ofan open character not in any

manner subject to criticism.” /d. at 35. He resisted efforts to get the

FBI into drug enforcement because it would have required that FBI

agents become involved in “unsavory” undercover operations, but

was forced by presidential directive to allow undercover FBI activi-

ties in defense intelligence matters during World War II. /d. at

36-37. Following Hoover's death his successor, Clarence M. Kelly,

with the support of Congress, and pursuant to widespread public

demand, began to move the FBI into “big cases” involving white-

collar and organized crime. /d. at 40-41.

Initially, the FBI, in cooperation with local law enforcement au-

thorities, established undercover fencing operations, gaining valu-

able experience in undercover techniques “that avoided claims of

entrapment.” /d. at 40. Thereafter, the FBI's undercover activities

have expanded to include “investigations of white-collar crimes, po-

litical corruption, personal and property crimes, and racketeering

crimes.” /d. at 43. The FBI now also has responsibility to investigate

violations of the criminal drug laws of the United States. 28 C.F.R.

§ 0.85(a) (1982). Unfortunately, the government cannot select the

nature of the crimes that will be committed and the detection of many

20a

rupt official influence in Congress. Such government involve-

ment in crime does not violate principles of due process.

We need not determine the exact limits on government

involvement in crime imposed by the due process clause for it is

of these “big” crimes require highly sophisticated undercover opera-

tions. Congressional appropriations for such undercover activity

have increased substantially, trom $1 million for 53 operations in 1977

to $4.5 million for 463 operations in 1981. /d. at 42. Thus, although

large FBI undercover operations might once have been character-

ized as extraordinary, such operations are now clearly part of the

FBI's routine activities and their legality is not destroyed by their

imaginative character.

My colleagues also criticize the failure of the FBI to closely super-

vise the Abscam operation. /fra, at 1474-1475. To the extent that

this criticism extends to the non-FBI middlemen, such as Ciuzio,

Rosenberg and Weisz, involved in Abscam, their activities could

hardly be “supervised” because they did not know Abscam was an

undercover investigation. The FBI took considerable precautions to

compensate for its inability to control the representations of the

middlemen. See note 50 supra.

Finally, my colleagues appear to criticize the amount of money and

other benefits offered by Abscam to Kelly. Jv tra. at L477. In my view

the sums offered were not unreasonable or “ yutrageous,” particular-

ly if it is remembered that Abscam was dealing with corruption of

high government officials and historically in such cases substantial

payments are made. Examples are legion: ["»/ted States v. Jannotti,

673 F.2d 578, 598-99 (3d Cir.) (en banc), cert. denied, ___ U.S, —_.

102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982) (bribery of member of Phila-

delphia City Council; payments in range of $10,000 to $80,000 not

excessive); United States v. Manton, 107 F.2d 834, 840-44 (2d Cir.

1938), cert. denied, 309 U.S. 664, 60 S.Ct. 590, 84 L.Ed. 1012 (1940)

(bribery of circuit judge of United States Court of Appeals for the

Second Circuit; payment in Depression dollars totaling over

$188,000; payments ranged from $11,500 to $60,000); Fall v. United

States, 49 F.2d 506, 512 (D.C.Cir.), cert. denied, 283 U.S. 867. 51

S.Ct. 657, 75 L.Ed. 1471 (1931) (Tea Pot Dome scandal: bribery of

cabinet officer; payments of large amounts of government bonds and

“loan” of $100,000, worth at least $1 million today); United States v.

2la

clear that the FBI's involvement in Abscam was less than that

government involvement found unobjectionable by the Su-

preme Court.“ In Hampton, the defendant asserted that a

government informant suggested the defendant could make

money by selling drugs, supplied the defendant with drugs.

and provided the purchasers—who were also government

agents—of those drugs. Hampton v. United States, supra, 425

U.S. at 486-87, 96 S.Ct. at 1648. Justice Brennan characterized

the government's activity as “doing nothing less than buying

contraband from itself through an intermediary and jailing the

intermediary.” /d. at 498, 96 S.Ct. at 1654 (Brennan, J., dis-

senting). Similarly, in Russe//, a government agent provided

the defendant with a scarce chemical essential for the unlawful

manufacture of methamphetamine, and purchased the illicit

product. United States v. Russell, supra, 411 U.S. at 424, 93

S.Ct. at 1639.

In each of these cases the government not only provided an

opportunity to commit a crime, but also provided the eans to

commit that crime. Nevertheless, in each case the Supreme

Court concluded that the government's conduct did not violate

Williams, No. 81 CR 269 (N.D.IIl. May 1981) (conspiracy to bribe

United States Senator from Nevada: offered Las Vegas property

valued at approximately 31.6 million at $200,000 discount; see N.Y.

Times, Oct. 22, 1982, at Als, col. 1). Many other cases could be cited

but no more are necessary to establish that the sums offered Kelly

were not “in excess of real-world opportunities” even though that is

not the test. /nfra, at 1477. Had they been Kelly would have become

suspicious and would have shied away. That the bait was taken here

is the best evidence that it was within the “real world” of the Con-

gressman, i.e., that his “price” was estimated correctly.

“For this reason, we need not decide the validity of the due

process test formulated by the district court—whether the tempta-

tion offered is “one which the individual is likely to encounter in the

erdinary course.” | nited States v. Kelly, supra, 589 F Supp. at 374.

It is suggested, however, that criminal conduct being as highly

varied as it is that such test is unduly speculative.

22a

due process. Hampton Vv. United States, supra, 425 U.S. at

485, 490-91, 96 S.Ct. at 1648, 1650; id. at 491-92, 96 S.Ct. at

1630-1651 (Powell, J., concurring): United States v. Russell,

supra, 411 U.S. at 424-25, 93 S.Ct. at 1639. Where, as in

Abscam, the government simply provides the opportunity to

commit a crime, prosecution of a defendant does not violate

principles of due process. This conclusion is in accord with

decisions of the Second and Third C ircuits upholding Abscam

convictions challenged on due process grounds. United States

vy. Williams, 705 F.2d 603 (2d Cir.1983): United States v.

Myers, 692 F.2d 823 (2d Cir.1982); United States v. Alevan-

dro. 675 F.2d 34 (2d Cir.), cert. denied, 6. es be

S.Ct. 78, 74 L.Ed.2d 75 (1982): United States v. Jannotti, 673

F.2d 378 (3d Cir.) (en bane), cert. de Niddl, acsms US enn 108

S.Ct. 2906, 73 L.Ed.2d 1315 (1982).”

C. Specific Claims

1. Reasonable Suspicion

Nor do any of the specifically challenged FBI actions in

furtherance of Abscam reach that “demonstrable level of

outrageousness” which would bar Kelly's prosecution. The

district court stressed that Abscam’s asylum scenario was not

triggered by any suspicion of corruption in government.

United States v. Kelly, supra, 539 F.Supp. at 371. Yet prior to

setting the asylum scenario in motion, Abscam had uncovered

evidence of official corruption in New Jersey™ and in the

Immigration and Naturalization Service.” Prior to enlisting

The Third Circuit's decision in Jan nott: is particularly significant

because it held that [United States v. Twigg. 588 F.2d 373 (3d Cir.

1978), the only post-Hampton case to uphold a due process challenge

to prosecution because of excessive government involvement, did not

control its consideration of Abscam. United States v. Jannotti, su-

pra, 673 F.2d at 608-10 & n. 17. Thus Kelly's reliance on Twigg is

misplaced.

4 See note 9 supra

5 U'nited States v. Alexandro, supra, 675 F.2d at 36-38.

23a

Rosenberg’s aid in the asylum scenario, the Abscam operatives

had seen at least one congressman accept a bribe for immigra-

tion assistance. United States v. Myers, supra, 692 F.2d at

830-31. Finally, prior to the January 8 meeting with Kelly, the

Abscam operatives had evidence from which they could con-

clude that Kelly was, in fact, corrupt. Ciuzio stated as much in

his meeting with Amoroso and Weinberg on December 19.”

Furthermore, Ciuzio told Weinherg on December 20 that he

asked Kelly tocall him froma “sate” phone booth to discuss the

transaction; that Kelly did so was strong evidence for the

Abscam operatives that Kelly was fully aware that he was

participating in an illicit transaction.” Thus, the FBI had

ample suspicion of corruption to justify pursuing the asylum

scenario and Kelly, if such suspicion was necessary. * In assert-

* See note 27 supra. Contrary to the statements of my colleagues

and the district court, not all of Ciuzio’s statements regarding Kelly

were clearly false. See infra. at 1474-1475 n. 1: United States v.

Kelly, supra, 539 F.Supp. at 367. Ciuzio told the Abscam agents that

Kelly needed the bribe money “to straighten his whole life out”

because he had used “a little f___ing money he ain't supposed to use.

..." Transcript of Meeting of Dec. 19, 1979, at 17. Kelly admitted

that he had discussed the amount of his indebtedness with Ciuzio at

their meeting at the Tampa Airport on November 23, although he

offered no explanation why he discussed his personal finances with a

man he was meeting for only the third time. See note 20 supra. This

conversation provides evidence that Ciuzio spoke truthfully when he

told the Abscam agents that Kelly intended to use the money from

the illicit transaction to pay his debts.

* See note 32 supra. Kelly admitted calling Ciuzio from a public

phone booth at Ciuzio’s request. Tr. at 2685-86.

* Although we need not decide the question, both the Second and

Third Circuits have rejected the argument that the government must

have reasonable suspicion of wrongdoing before proceeding with an

undercover operation such as Abscam. Ln ited States v. Jannotti,

supra, 673 F.2d at 608-09; United States v. Myers, 635 F.2d 932, 941

(2d Cir), cert. denied, 449 U.S. 956, 101 S.Ct. 364, 66 L.Ed.2d 221

(1980),

24a

ing the contrary, my colleagues, without explanation, fail to

give a common sense interpretation to the uncontradicted evi-

dence in the record. See Sep. Op., infra, at 1n. 1. Members of

the federal judiciary have no power to veto law enforcement

practices merely because such practices offend their personal

tastes. Cf. Hampton v. United States, supra, 425 U.S. at 490,

96 S.Ct. at 1650 (entrapment); United States v. Russell, su-

pra, 411 U.S. at 435, 93 S.Ct. at 1644 (same),

2, Utilization Of Weinberg

It is submitted that Kelly's argument that the FBI violated

due process by utilizing the services of an admitted confidence

man, Melvin Weinberg, in Abscam should likewise be rejected.

Successful creation of an “elaborate hoax” such as Abscam may

well require employment of “experts” such as Weinberg to give

the operation an aura of “credibility” and “contracts” with

criminal elements. The employment of a convicted confidence

man in Abscam is analogous to the entirely proper employment

of a convicted seller of drugs to purchase drugs from a sus-

pected distributor. As the Second Circuit stated:

(U]se of dishonest and deceitful informants like Weinberg

creates risks to which the attention of juries must be

forcefully called, but the Due Process Clause does not

forbid their employment, detail their supervision, nor spe-

cify their compensation.

United States v. Myers, supra, 692 F.2d at 846. In this case,

Weinberg’s checkered background and dubious credibility

were brought before the jury through vigorous cross-

examination. The jury was entitled to consider Weinberg’s

testimony and give it such weight as it found appropriate. In

my view there was no error of constitutional dimension in the

FBI’s use of Weinberg’s services in Abscam.

3. Failure To Memorialize Conversations

Similarly, Kelly's claim that the FBI violated due process by

failing to record or memorialize every conversation between

Weinberg and Kelly’s codefendants is without merit. At trial,

25a

only Weisz seriously challenged Weinberg’s version of an unre-

corded conversation—a five minute telephone conversation

with Weisz on December 21, 1979.” Kelly had the benefit of

Weisz™exculpatory” version of this conversation at trial” and

has failed to explain how any of the other unrecorded conversa-

tions would have added anything of significance to his defense.

The FBI operatives successfully recorded the vast majority of

their communications with Kelly and his codefendants, includ-

ing all but one of their critical conversations.”’ The FBI's

occasional failure to record Abscam conversations does not

constitute a due process violation.”

Tr, at 3791-94, 3798-802, 3810-11. There was apparently only one

other significant unrecorded conversation between Weinberg and

Kelly’s codefendants—an eleven minute telephone conversation be-

tween Weinberg and Ciuzio on December 18, 1979. Tr. at 1276-77,

1282-84, 1615-18. Amoroso testified that he did not prepare a memor-

andum on that conversation because their meeting with Ciuzio the

following day allowed him to bring out everything discussed in that

conversation. Tr. at 1276-77. See Tr. at 1053-54, 105e.

“Tr, at 3857-77.

"\T suspect that Kelly is more upset with Abscam’'s considerable

success in recording conversations than with its occasional failures in

that regard.

"2 See United States v. Myers, supra, 692 F.2d at 546.

Kelly’s reliance on a line of cases requiring government preserva-

tion and production at trial of notes and tapes created during an

investigation is inapposite. See United States v. Bundy, 472 F.2d

1266 (D.C. Cir. 1972) (per curiam); United States v. Bryant, 489 F.2d

642 (D.C.Cir. 1971). In those cases we dealt with

the legal consequences of intentional non-preservation by in-

vestigative officials if highly relevant evidence, colored by clear

reluctance even to admit that the evidence ever existed at all.

United States v. Bryant, supra, 439 F.2d at 647 (emphasis added).

We have subsequently held that the government is not required to

preserve or produce insignificant or irrelevant evidence. L'nited

States v. Bowles, 488 F.2d 1307, 1313 (D.C.Cir. 1973), cert. denied,

415 U.S. 991, 94.S.Ct. 1591, 39 L.Ed.2d 888 (1974). Kelly does not

4. Multiple Bribe Offers

Finally, Kelly contends that the FBI operatives violated due

process when they persisted in offering a bribe after what he

characterizes as his initial rejection. Kelly asserts that he

rejected the bribe at his meeting with Ciuzio on December 23.

that Ciuzio informed Amoroso and Weinberg of that fact at the

townhouse on January 8, and that he rejected the bribe several

times in his meeting with Amoroso. Kelly argues, and the

district court agreed, that under these circumstances Amor-

oso’s several bribe offers to Kelly were outrageous and

violated due process. United States v. Kelly, supra, 539

F.Supp. at 374-76. I cannot agree.

The evidence in this case clearly demonstrates that at no

time did Kelly reject Abscam’s corrupt immigration proposal,

On both December 23 and January 8, Kelly agreed to assure

the wealthy Arabs that he would help them with their

immigration problems as a favor to Ciuzio, despite the fact that

Kelly knew that in return the Arabs would pay substantial

sums to Ciuzio, Rosenberg, and Weisz.” It is also clear that

Kelly understood that part of the arrangement was that the

Arabs would make substantial investments in his district.”

Such agreements, which would benefit Kelly indirectly, con-

stitute violations of the bribery statute.” Furthermore. the

discussions between Ciuzio, Kelly, and the Abscam operatives

at the townhouse of January & focused on the manner in which

assert that the Abscam operatives deliberately destroyed recordings

of the conversations at issue: he merely claims that Weinberg failed

to record them. Nothing in the Bryant line of cases suggest that the

government is required to create documentary evidence of all con-

versations.

“Transcript of Meeting of Jan. 8, 1980, at 16; Tr. at 2661-66.

2848-57.

“Transcript of Meeting of Jan. 8, 1980, at 12-13, Tr. at 2664-65.

See 18 U.S.C. § 201(c) (1976). The district court so instructed the

jury. Tr. at 4920.

27a

the bribe would be paid, not on whether it would be paid. Ciuzio

told Weinberg not to bribe Kelly directly, but agreed that he

would take the money for Kelly.” After agreeing that Amoroso

was going to give him some money at the meeting, Kelly asked

Amoroso to pay the bribe to Ciuzio—to “deal with [Ciuzio]

about it.""” In my view, Congressman Kelly “did not reject a

bribe, he [initially] rejected its payment under circumstances

he feared would be incriminating.” United States v. Myers,

supra, 692 F.2d at 838."

I likewise reject Kelly's characterization of his conversation

with Amoroso on January & as a sees of bribe offers. Although

the terms of the corrupt Abscam proposal were mentioned

several times during that converstion, Amoroso’s discussion

reflects the evasive and circumspect negotiation to be ex-

pected of a person seeking to corrupt a public official. In my

view, Amoroso’'s conversation with Kelly on January & can be

fairly characterized only as a single offer of a corrupt proposal

to Kelly.” For these reasons I reject kelly’s contention that he

” Transcript of Meeting of Jan. §, 1980, at 1-11. See notes 38-39 and

accompanying text supra.

Transcript of Meeting of Jan. &, 1980, at 22-23. See text accompa-

nying note 44 supra.

*In Myers, the Second Circuit considered the appeal of Con-

gressman Frank Thompson, who first met Amoroso and Weinberg on

the morning of October 9, 1979. At that meeting Thompson rejected

Amoroso’s offer of money and left. After further discussions with an

intermediary, Howard Criden, Thompson again met with Amoroso,

agreed to assist the wealthy Arabs, and asked Criden to “look after”

the $50,000 offered by Amoroso. Criden carried the money from the

meeting. L’nited States v. Myers, supra, 692 F.2d at 832-33. On these

facts, which in many respects are more favorable to a due process

defense than those in Kelly's case, the Second Circuit rejected

Thompson's claim that the FBI violated due process by offering a

bribe after his initial rejection of the bribe at the first meeting. /d. at

838.

See Tr. at 1125-31, 1178-79.

28a

intially rejected a bribe, that the Abscam agents persisted in

offering him a bribe, and that they thus violated due process.

IV. CONCLUSION

Like the district court,

we like to think, and we hope, that our Congressmen and

Senators, and indeed all public servants, are strong

enough to withstand any imaginable pressure and reject

any type of temptation no matter how attractive, and walk

away... . But in reality, the hard fact is that our public

servants are not recruited from the seminaries and monas-

taries across the land and that they are plagued by the

frailties of human nature.

United States v. Kelly, supra, 539 F.Supp. at 375 (emphasis

added). Because of this fact and because dishonest public offic-

als, responsive more to money than to their obligations to the

nation, may cause grave harm to our society, we recognize the

need for law enforcement efforts to detect official corruption.

Furthermore, such corruption is “that type of elusive, difficult

to detect, covert crime which may justify Government infiltra-

tion and undercover activities.” United States v. Alexandro,

supra, 672 F.2d at 42 (footnote omitted).

The Supreme Court has made it clear that “a successful due

process defense must be predicated on intolerable government

conduct which goes beyond that necessary to sustain an

entrapment defense.” L’nited States v. Jannotti, supra, 673

F.2d at 607 (emphasis added). Considering the genuine need to

detect corrupt public officials, as well as the difficulties in-

herent in doing so, we conclude that the FBI's conduct in

furtherance of its Abscam operation, insofar as it involved

Kelly, simply did not reach intolerable levels. Accordingly,

“Accord Baucom v. Martin, 677 F.2d 1546, 1350-51 (11th

Cir.1982); United States v. Jannotti, supra, 673 F.2d at 609. See

Hampton v. United States, supra, 425 U.S. at 495 n. 7, 96 S.Ct. at

1653 n. 7 (Powell, J., coneurring): United States v. Russell, supra,

411 U.S. at 482, 93. 5.Ct. at 1643.

29a

having carefully considered all of Kelly’s claims that the

government's conduct violated due process, we reverse the

district court's dismissal of the indictment, as well as its entry

of the judgment of acquittal, and direct the district court to

reinstate the indictment and the verdict of the jury.

Judgment accordingly.

GINSBURG, Circuit Judge:

“Abscam,” as the District Court's thoughtful opinion details,

was an extraordinary operation. The investigation was steered

in large part by a convicted swindler; it relied upon con men to

identify and attract targets, to whom legitimate as well as

illegitimate inducements were offered: it proceeded without

close supervision by responsible officials.’ The District Court

allowed the jury to determine whether defendant Kelly was

“predisposed” to commit the crime charged, and therefore not

' See United States v. Kelly, 539, F.Supp. 363, 366-67, 367 n. 16 and

accompanying text, 374 n. 48 and accompanying text (D.D.C. 1982).

We do not share Judge MacKinnon’s view that, apart from “trapp-

ings of wealth,” Abscam “was “of significantly different from” run-

of-the-mine “passive” undercover operations. See Judge MacKin-

non's opinion, swpra at p. 1469-1470 & note 51, As the District Court's

opinion sets out in painstaking detail, the Abscam actors did a good

deal more than simply “spread the word.” Nor can we agree with

Judge MacKinnon that the FBI “had ample suspicion of corruption to

justify pursuing. . . Kelly.” /d. at p. 1471. That suspicion, as Judge

MacKinnon recites, was based on Ciuzio's report to Amoroso and

Weinberg that “Kelly was, in fact, corrupt.” /d. at p. 1471. But as the

District Court observed:

Ciuzio went to <reat lengths to make it appear that he had

virtual control over the Congressman, indicating at the time that

Kelly was dishonest and was already taking money and had

various other weaknesses. He indicated that he had known and

cultivated Kelly for about 2'2 vears. None of this was true. No

attempt was made to verify it; and there is no indication that

Weinberg and Amoroso believed it.

539 F.Supp. at 367 (footnotes omitted).

30a

“entrapped” under the current definition of that defense.- Af-

ter the jury returned a guilty verdict, however, the District

Court dismissed the indictment against Kelly on the ground

that the government's conduct of the investigation was

fundamentally unfair, and therefore incompatible with due

process. The sole issue properly before us for review is the

correctness of the due process ruling. '

The District Court stated and attempted to apply an objec-

tive test to determine when government investigation exceeds

tolerable limits: Was the crime-inducing conduct in which the

government engaged, the temptation presented to the target,

modeled on reality?’ This test, the District Court indicated,

“In contrast to an “objective” test that measures the methods used

to induce the criminal act against standards of acceptable police

behavior, the current, “subjective” test of entrapment looks to the

propensity or “predisposition” of the induced defendant to engage in

the proscribed conduct. See United States v. Jannotti, 673 F.2d 578,

598-98 (3d Cir.) (en bane) (summarizing Supreme Court precendent),

cert. denied, U.S. —_, 102 S.Ct. 2906, 73 L. Ed.2d 1315 (1982):

United States v. Myers, 692 F.2d 823, 835-36 (2d Cir.19®2),

‘In so ruling, the District Judge did not purport to determine

whether the government produced sufficient evidence to warrant a

jury finding that Kelly was “predisposed” to receive a bribe. Rather,

his analysis centered on the nature of the government's overtures.

539 F.Supp. at 376-77. Cr. United States v. Jannotti, supra, 673 F.2d

at 607-08 (lower courts must resist permitting objective test of

entrapment, rejected by the Supreme Court, to reemerge as a due

process defense; entrapment defense reflects Court's view of legisla-

tive intent and Congress may reshape the defense as it sees fit).

* As the District Judge recognized, “there is a tendency for the due

process defense to overlap with the entrapment defense.” 539

F.Supp. at 376 (footnote omitted). However, on this appeal pursued

by the government, only the due process defense is properly pre-

sented.

‘As the District Court phrased it: “The litmus test—or

temptation—should be one which the individual is likely to encounter

in the ordinary course.” 539 F.Supp. at 374 (footnote ommitted).

3la

should apply when the government had no knowledge of prior

wrongdoing by the target and no reason to believe the target

was about to commit a crime;:" it would serve as a check against

government creation (rather than apprehension) of criminals

by offers or importuning that would never occur in the real

world.”

The real-world test, as applied by the District Court, is

speculative. The District Judge assumed that a person who

offers a bribe would retreat upon encountering an initial rejec-

tion and would not “have the audacity” to press on “for fear of

being reported.” But the first overture renders the party

offering the bribe vulnerable to prosecution. “In for a calf,”

such a person might press on if he perceives any chance of

ultimate success.’ Nonetheless, were the slate clean, we might

* See id. at 371 (Abscam was launched without “even the remotest

suspicion about the existence [in general or with respect to any

particular individual} of any prior, on-going, or imminent criminal

activity”); id. at 373 (Department of Justice and FBI had “not evena

scent of suspicion of criminal conduct, past, present, orimminent. . .

by Kelly”).

* The District Court noted that, immediately after Abscam became

public, the Assistant Attorney General, Criminal Division, testified

in congressional hearings that modeling the transaction after reality

serves as a “guarantee of fairness” to the individual “because it

means that anybody who is brought in, is brought in with the same

type of temptation{] that we know is floating out there.” /d. at 374 n.

47, citing FBI Oversight: Hear ngs Betore the Suheonmon, on Civil

and Constitutional Rights of the House Comm. on the Judiciary,

96th Cong., 2d Sess. 154 (1980).

*539 F.Supp. at 374, 376, 377. As the District Judge finally phrased

his application of the real-world test: “If after an illegal offer is made.

the subject rejects it in any fashion, the government cannot press

on.” Id. at 377.

* As the government points out, Brief for Appellant at 6s, parties

to real-world transactions could readily adjust to a one-refusal rule:

the bribe taker would always resist the first overture.

32a

be attracted to an approach similar to the District Court's, and

would perhaps ask whether, in real-world circumstances, the

person snared would ever encounter bait as alluring as the

offer the government tendered."

However, our slate contains references that lower courts are

not positioned to erase, We may not alter the contours of the

entrapment defense under a due process cloak,'' and we lack

authority, where no specific constitutional right of the defend-

ant has been violated, to dismiss indictments as an exercise of

supervisory power over the conduct of federal law enforce-

ment agents. See United States v. Payner, 447 U.S. 727, 737 n.

’ The inquiry might extend to the nature of the reward and quid

pro quo authorized by responsible officials of the Department of

Justice and the FBI, the efforts made to assure that those who

carried out the scam adhered to the approved script, and the nature

of the transaction in fact proposed to the target. The tolerable limit

would be crossed if the opportunity offered differed qualitatively

from, and therefore was more difficult to resist than, those the target

would otherwise encounter. See Spera, Protecting the “Otherwise

Innocent”: An Alternate Standard for Entrapment (Draft, 1982).

Exchanges such as this one between an FBI agent and Ciuzio, the

unwitting middle-man who conveyed the FBI's offer to Kelly, would

invite particular scrutiny:

(Ciuzio] Now, you you're saying ya gonna give em twenty-five

thousand

[FBI Agent} Right

[Ciuzio] For doin nothin

[FBI Agent} For doin nothin

|Ciuzio| To stand by

(FBI Agent] To stand by. And if the guy comes, when the guy

comes...

Transcript of 12:13 p.m. meeting, Dec. 19, 1979, at 29.

' See United States v. Twigg, 588 F.2d 373, 382 (3d Cir.1978)

(Adams, J., dissenting).

38a

9, 100 S.Ct. 2439, 2447 n. 9, 65 L. Ed.2d 468 (1980), '* Precedent

dictates that we refrain from applying the general due process

constraint to bar a conviction except in the rare instance of

“{pJolice overinvolvement in crime” that reaches “a demonstr-

able level of outrageousness.” Hampton v. United States, 425

U.S. 484, 495 & n. 7, 96S.Ct. 1646, 1653 & n. 7, 48 L.Ed.2d 113

(1976) (Powell, J.. concurring) (cases, “if any,” in which a

“predisposed” defendant can successfully invoke a due process

defense ae be rare”); United States v. Russell, 411 U.S, 428,

431-32, 93 S.Ct. 1637, 1642-1643, 36 L.Ed.2d 366 (1973).

The nee level of outrgeousness, the Supreme Court has

indicated, is not established merely upon a showing of obno-

xious behavior or even flagrant misconduct on the part of the

police; the broad “fundamental fairness” guarnatee, it appears

from High Court decisions, is not transgressed absent “coer-

cion, violence or brutality to the person.” See Jrvine v. Califor:

nia, 347 U.S. 128, 1382-33, 745.Ct. 381, 382-385, 98 L. i 561

(1954) (distinguishing Rochin v. California, 342 U.S. 165, 72

S.Ct. 205, 96 L.Ed. 183 (1952)). Without further aoa

Court elaboration, we have no guide to a more dynamic defini-

tion of the outrageousness concept, and no warrant, as lower

court judges, to devise such a definition in advance of any

signal to do so from higher authority.

2 See also United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59

L.Ed.2d 733 (1979) (noncompliance with internal departmental

guidelines is insufficient cause for excluding evidence).

'’ Lower courts have generally read Supreme Court precedent to

confine the broad due process check on the conduct of law enforce-

ment officers to the slim category of cases in which the police have

been brutal, employing against the defendant physicial or psycholog-

ical coercion that “shocks the conscience.” See, ¢.g.. United States v.

Alerandro, 675 F.2d 34, 40 (2d Cir.), cert. denied, _ U.S. —,

103 S.Ct. 78, 74 L. Ed.2d 75 (1982) (attempted bribery of immigration

official) (“The distinction between the {“shocking”] cases and the

instant one is clear. There, the challenged conduct ranged from an

invasion into the integrity of the body to an extraordinarily coercive

interrogation. The activities called into question here, however,

34a

The importuning of Congressman Kelly and the offers made

to him, extraordinary and in excess of real-world opportunities

as they appear to have been, did not involve the infliction of

merely involve special investigative techniques for obtaining evi-

dence of Alexandro’s voluntary participation and do not entail bodily

invasion.”); Yaner v. Romero, 619 F.2d 851, 855 (10th Cir.), cert.

denied, 449 U.S. 876, 101 8.Ct. 221, 66 L. Ed.2d 98 (1980) (threat to

use a catheter to take urine sample from recalitrant prisoner not

shocking) (“It was very likely the lack of force and brutality was

instrumental in the Court's ruling [in Sch merher v. California, 384

U.S. 757, 86 S.Ct. 1826, 16 L. Ed.2d 908 (1966) |."); United States v.

Ford, 553 F.2d 146, 155. 34(D.C. Cir. 1977) (“The /rvine case did not

fall within the exclusionary rule of Rochin ... because there had

been no coercion, violence, or brutality to the person.”) (dictum);

United States v. VanMaanen, 547 F.2d 50 (8th Cir, 1976) (not shock-

ing that police prepared false reports, advised witness to leave town,

failed to disclose before trail existence of informant); LU’ /ted States v.

Gengler, 510 F.2d 62 (2d Cir.) (kidnapping of defendant from Bolivia

and transportation to the United States not shocking), cert. denied,

421 U.S. 1001, 95 S.Ct. 2400, 44 L. Ed.2d 66a (1975); United States v.

Harrison, 432 F.2d 1328 (D.C.Cir. 1970) (grabbing throat to prevent

swallowing of heroin capsules not shocking because calculated to

prevent destruction of evidence); Rivas v. United States, 368 F.2d

703, 710-11 (9th Cir. 1966) (body cavity border search) (“This is nota

Rochin case, with its physical assault on a defendant, both before the

stomach pumping, and at the time of its occurrence. It was the

physical assault in Rochin which caused reversal... ."), cert denied,

386 U.S. 945, 87 S.Ct. 980, 17 L. Ed.2d 875 (1967); Blefare v. United

States, 362 F.2d 870 (9th Cir. 1966) (in connection with border search,

rectal examination, administering an emetic, stomach pumping,

largely without objection by defendant, not shocking): United States

Vv. Baskes, 442 F.Supp. 322, 333 (N.D.II1.1977) ("In /rvine itself, the

Supreme Court apparently limited application of the supervisory

powers doctrine to cases which involved ‘coercion, violence or brutal-

ity to the person.’ ”) (dictum), aff'd, 649 F.2d 471 (7th Cir. 1980).

Contrast Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980) (corpor-

al punishment of students might violate due process if it “amounted

to a brutal and inhumane abuse of official power, literally shocking to

35a

pain or physical or psychological coercion. We are therefore

constrained to reverse, although we share the District Court's

grave concern that the Abscam drama, both in its general

tenor, and in “the [particular] manner in which Kelly was

handled,” 539 F.Supp. at 373, unfolded as “an unwholesome

spectacle.”

the conscience”); Huguez v. United States, 406 F.2d 366, 379 (9th Cir.

1969) (warrantless border search of rectal cavity without clear prior

indication it contained narcotics shocking (dictum)

But see United States v. Valencia, 541 F.2d 618, 621-22 (6th Cir.

1976) (violation of attorney-client privilege of codefendant may be

grounds for dismissing charges).

36a

APPENDIX B

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1982

Criminal Action No. 80-00340

No. 82-1660

UNITED STATES OF AMERICA

Appellant

RICHARD KELLY

BEFORE: Robinson, Chief Judge, Ginsburg, Circuit Judge,

and MacKinnon, Senior Circuit Judge

ORDER

On consideration of the Petition for Rehearing of Appellee,

filed June 13, 1983, it is

ORDERED by the Court that the aforesaid Petition is de-

nied.

FOR THE COURT:

George A. Fisher

GEORGE A. FISHER

Clerk

BY: Robert A. Bonner

RoBerT A. BONNER

Chief Deputy Clerk

37a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Cr. No. 80-00340

UNITED STATES OF AMERICA

Plaintiff,

RICHARD KELLY, EUGENE Ropert Civzio, aka GINo CIvzio,

and STANLEY WEISZ,

Detendants.

FILED

MAY 13 1982

CLERK, U.S. DISTRICT COURT

DISTRICT OF COLUMBIA

ORDER

For the reasons stated in the accompanying memorandum, it

is hereby

ORDERED that defendant Kelly’s motion for judgment of

acquittal and to dismiss the indictment against him is granted,

and it is

FURTHER ORDERED that judgment of acquittal is

granted and the indictment against defendant Kelly is dis-

missed, and it is

FURTHER ORDERED that the judgments against de-

fendants Ciuzio and Weisz are vacated and a new tnial is

granted as to them, and it is

38a

FURTHER ORDERED that the motion to reopen is de-

nied.

William B. Bryant

UNITED STATES DISTRICT JUDGE

Date: May 13, 1988

39a

APPENDIX D

United States District Court,

. District of Columbia.

No. Cr. 80-00340.

UnitED States of America, Plaintiff,

Richard KeLLy, Eugene Robert Ciuzio,

aka Gino Ciuzio, and Stanley Weisz. Defendants.

May 13, 1982

MEMORANDUM ON DUE PROCESS AND OTHER POST

TRIAL MOTIONS

BRYANT, Senior District Judge.

Former Congressman Richard Kelly was found guilty of

bribery, 18 U.S.C. § 201(c), conspiracy, 18 U.S.C. § 371, and

violation of the Travel Act, 18 U.S.C. § 1952. Eugene Ciuzio

and Stanley Weisz were found guilty of conspiracy, aiding and

abetting, 18 U.S.C. § 2, and violating the Travel Act. All three

defendants have made motions to dismiss their indictments

because the government violated due process, for judgments

of acquittal, and for a new trial. Ciuzio has also moved for a

severance and a new trial. For the reasons that follow, the

court is dismissing the indictment against Kelly and granting

new trials to Ciuzio and Weisz.’

' The government has submitted, in its brief of October 30, 1981 at

n.2, that the relevant evidence for the due process issues includes the

entire record in this case as well as in the other Abscam cases. The

defendants have cited evidence from other cases in their briefs. The

court agrees that any evidence of government conduct which affected

the defendants in this case is relevant, and has therefore considered

that evidence as reflected in the transcripts and exhibits from the

other due process deliberations.

40a

“Abscam” is a code word used by the Federal Bureau of

Investigation (FBI) to identify an undercover operation which

was originally intended to uncover securities fraud and recover

stolen art treasures, and ended up with FBI agents and a

master criminal posing as representatives of Arab sheiks at-

tempting to persuade Congressmen to take bribes in front of

hidden video cameras. The Second Circuit characterized this

latter phrase as a plan of the Executive Branch of the govern-

ment of the United States “to determine whether members of

the Legislative Branch and others would commit bribery

offenses if presented with the opportunity to do so.’ In

another Second Circuit case, Judge Kaufman observed that

“Abscam indeed was an intricate artifice, a stratagem of con-

voluted ploys and schemes designed to test the faith of those in

the high echelons of government who are the repositories of

the public trust." In yet another related case, the Third Cir-

cuit pointed out that “the basic plan evolved into [the] various

subparts, each with its own cast of participants which were

ultimately the subject of [prosecution], and emphasized that it

was focusing on the particular facts material to the case which

it had under consideration.‘ Abscam has also been referred to

by the government from time to time as a “sting operation.” I

suppose, in a general sense, all these descriptions apply. How-

ever, in order to make the reasons for the disposition of this

case very clear, a little more detailed treatment of this final

phase of Abscam and the precise manner in which it related to

Kelly is necessary.

In 1977, FBI agents prevailed upon a federal judge to allow a

swindler and con man to remain free on probation after convic-

tion for mail fraud in exchange for a promise to cooperate with

the Bureau in some of its endeavors against organized crime.

‘United States v. Myers, 685 F.2d 932, 934 (2d Cir. 1980).

‘T'nited States vy. Alerandro, 675 F 2d 34 at 48 (2d Cir. 1982).

‘United States v. Jannott:, 673 F.2d 578 at 581 (rd Cir. 1981).

dla

This convict, Melvin Weinberg, stated flatly this his motiva-

tion to work for the FBI was “that I could make some big

money.” Shortly after the FBI intervention, Weinberg was

hired on a monthly basis to be a principal participant in the

earlier phase of Abscam, i.e., the securities and art aspects. In

January 1979, shortly after Agent Amoroso took over as Wein-

berg’s immediate supervisor, Amoroso recommended that

Weinberg’s pay be raised from $1,000 per month plus expenses

to $5,000 per month plus expenses because, among other

reasons, Amoroso was concerned that Weinberg would “try

and con other people on the side” if his living habits were not

kept up.’ This regular income was supplemented by sub-

stantial bonuses from time to time. Meanwhile, the field agents

and Weinberg were maintained ona living standard consistent

with great wealth.” Not long thereafter some white collar

crime was uncovered in the Immigration and Naturalization

Service.’

The record reflects that the last of the vorious “subparts” or

“convoluted ploys,” which ultimately resulted in the indict-

ment of several Congressmen, was conceived—lock, stock,

and barrel—by Weinberg and made its first appearance on

July 14, 1979 in a conversation with George Katz, a defendant

Tr. at 1553-60. “Tr.” refers to the trial transcript in this case.

References to transcripts or exhibits of other proceedings are pre-

ceded by the name of the case from which the transcript or exhibit

comes. See note 1.

*Tr. at 1557.

"Tr. at 1027-30.

‘Tr. at 1358. See also, United Staes v. Jannotti, 501 F.Supp. 1182,

1193-94 (E.D.Pa. 1980),

* Alexandro.

42a

in another case.’ Up until the time that the tape of this con-

versation was reviewed sometime within the following two

weeks, apparently nobody in the FBI had entertained the

notion of testing the virtue of legislators with the investment.

immigration problem scenario.

This scenario was indeed “an intricate artifice.” As Wein-

berg told Katz, the Arab sheiks, who had been investing inthe .

Myers due process exhibit 58 at 11-24, is a transcript of a con-

versation on July 14, 1979 between Weinberg and Katz.

The evolution of the public explanations for the origin of the asylum

scenario itself raises interesting questions which need not be

answered here.

Weinberg first testified about the origin of the asylum scenario in

the Jannotti due process hearings before Judge Fullam in Philadel-

phia. There, he said that the idea first occurred to him while on a

yacht on July 26 as a result of a suggestion by Criden. Jannotti due

process at 3.86-3.87. Amoroso testified at the same hearing that he

thought of the scenario the day before they were on the yacht as a

result of a July 25 newspaper article about former Nicaraguan dicta-

tator Somoza’s immigration problems. /d. at 5.148-49. In the Brook-

lyn due process hearings, Amoroso repeated the newspaper article

story. Myers due process at 4107. However, he later admitted that

his review, prior to the July 26th meeting, of the Weinberg-Katz

tape, where the entire scenario was discussed. might have had “some

bearing in [his] mind” when he suggested the asylum scenario onJuly

26. Id. at 4109.

The government's assertion in oral argument, Ae//y due process at

180-83, that the genesis was prompted by an ad lib by Amoroso on

July 26 and that the idea was merely passed along by Weinberg and

Amoroso after being “originated by Errichetti, Criden and Con-

gressman Myers,” /d. at 182, is not in accordance with the record.

And neither is the government's latest representation to the effect

that “Abscam was not the creation of Weinberg” if the term Abscam

is meant to refer to the asylum scenario. There is no evidence of the

originator of the initial Abscam concept—the securities and art re-

covery project—but the record is absolutely clear that the final phase

which was directed at Members of Congress was Weinberg’s brain-

child.

43a

United States, were afraid that there would come a time when

they would have to flee their country because of internal prob-

lems, as did the Shah of Iran. To insure against any problems

they may have with immigrating to the United States, Wein-

berg said the sheiks wanted to “sign up” as many Congressmen

and other public officials as possible.’ The Congressmen’s

commitment would be secured with promises of investment in

their districts and payments of cash to them.

Apparently the FBI quickly approved the new phase of the

operation, and Weinberg used his connections with other con

men and criminals to spread the word that $25,000 would be

paid to Congressmen and $50,000 would be paid to U.S. Sena-

tors for their help. '* More money would be paid when the sheiks

actually got into this country.’’ This money was in addition to

the millions of dollars of legitimate investments which would

be directed to the districts of helpful Congressmen.

The anticipated effect of this offer was that persons would be

encouraged to bring the offer of investments and cash to the

attention of Congressmen in the hope of getting a piece of the

action. Weinberg characterized his announcement as “setting

out a honey pot” and then just sitting back and waiting. As was

to be expected, Weinberg’s proposition activated some hust-

lers and con men with varying degrees of expertise who were

anxious to cash in. Inasmuch as the contacts between the

middlemen and the Congressmen were not monitored, the

Bureau had no first-hand knowledge of whether both the legal

and illegal aspects of the deal were presented to the Con-

gressmen, and what the responses were.

The scheme affected Kelly in the following fashion. William

Rosenberg, goaded on by Weinberg and Amoroso with prom-

ises of millions of dollars for various chores undertaken on

" Myers due process exhibit 58 at 11-24.

“Tr, at 1090-91.

8 Td,

dda

behalf of the enterprise,’ passed the word to, among others,

Stanley Weisz. Sometime later, Weisz mentioned the general

proposition to Gino Ciuzio who had become acquainted with

Congressmen Kelly in the fall of 1979.

After a series of phone calls, Rosenberg and Weisz put

Ciuzio in contact with Weinberg and a meeting was arranged

for Ciuzio, Weinberg, and Agent Amoroso (who used the alias

Tony DeVito). At this meeting, on December 19, 1979, Ciuzio

went to great lengths to make it appear that he had virtual

control over the Congressman, indicating at the time that

Kelly was dishonest and was already taking money and had

various other weaknesses. He indicated that he had known and

cultivated Kelly for about 2'2 years." None of this was true. No

attempt was made to verify it; and there is no indication that

Weinberg and Amoroso believed it.

This meeting amounted to a briefing for Ciuzio, who wanted

to know the details of Weinberg’s proposition. Ciuzio was filled

in by Amoroso and Weinberg and instructed as to how to make

his pitch to Kelly. Indeed, at one point during this briefing,

Ciuzio said: “Whatever program you feed into me, I'll give it to

him.” The program, of course, included the very attractive

investment in the Congressman’s district on the one hand,

along with the proposal to buy his assistance in any immigra-

tion problem. Also during this briefing, Ciuzio sought to con-

vince Weinberg and Amoroso that if they would just give him

4 Tr, at 1073. Rosenberg has pled guilty in this case to conspiracy

to bribe and defraud the United States.

‘S Government exhibit l(b) and (¢) at 15-39.

Tr, at 4123-24, 1115-16. FBI Director Webster has testifed that

since the middlemen do not know they are dealing with the FBI and

are not monitored or controlled, “{wJe must, therefore, carefully

evaluate any information they provide us as to the willingness of a

third party to engage in a crime before we proceed further, and

assume that if such a third party does meet with us, he is aware of the

criminal nature of the meeting.” .Wyers due process exhibit 110 at 24.

‘Government exhibit l(b) and (c) at 30.

45a

the money they would have nothing to worry about—"I'll take

a bag of money and we are through with the whole thing.’ The

money, by the way, was no longer $25,000, but had been raised

by Ciuzio to $250,000, or as he put it, “a quarter mill.” To this

proposition Weinberg quickly said: “That's agreeable.”

Obviously, Weinberg was authorized to dangle any amount of

money before the middlemen in order to accomplish their pur-

pose.

Ciuzio then went to Kelly and apparently fed him the pro-

gram he had been given. At the trial of the case, the uncontra-

dicted testimony of both Kelly and Ciuzio was that when Ciuzio

told Kelly that money was available for him, Kelly rejected the

idea of a pay-off, but at the same time expressed interest in the

legitimate bait, that is, the enormous investments which were

proposed for his district.”’ Thus, the only evidence presented at

trial shows that when the bribe was first offered to Kelly, by

Ciuzio, it was rejected.

Finally, a meeting was set up for January &, 1980 at the

FBI’s townhouse in Washington at which Kelly was to meet

the representatives of the Arab sheiks. Soon after arrival at

the townhouse Ciuzio, in a one-on-one confrontation with

Weinberg, made a frantic and what appears to be desperate

argument against offering Kelly any money. Unbeknownst to

Ciuzio, this encounter was videotaped. In an unrecorded meet-

ing between Ciuzio and Amoroso in a hallway, a similar con-

versation occurred. During the Ciuzio-Weinberg encounter,

Ciuzio immediately told Weinberg that Kelly had indicated to

's Jd, at 19. Ciuzio sought to convince Weinberg and Amoroso that

he had such control over the Congressman that it Was unnecessary

for them to deal with Kelly and that Ciuzio himself would guarantee

that what they wanted would in fact be done. Weinberg and Amoroso

insisted on some contact with the Congressman and began to tell

Ciuzio how to make his pitch.

‘Jd. at 17.

” Tr. at 2663-66, 2851-57, 3046-48.

46a

him that he would not take any payoff for what he would do for

the sheiks.”’ Later, the conversation went as follows:

Ciuzio: Now, here’s what I'm telling ya.

He's a kid and I know he’s ripe for the first big. . . score.

This a Congressman, ya understand? This ain't a...

hustler, cause we're hustlers. We're wise guys. . . shake

hands... budabomb. . . budabomb. . . buda. . . It don't

mean nothin, ya know what I’m saying? Don’t hand him no

. . money, don't talk money, tell him what the problemis,

how could ya help, he'll explain it. . .

Weinberg: I don’t know, ya gotta speak to him. That may

be a problem, Gino. Why don't you. .

Ciuzio: Listen, let me tell ya what you're buying here, ok.

You know this. Cause maybe this is his first shot in this

role, all right? He ain't buying no. . . Congressman. He's

buying the vehicle to accomplish your package, ya follow?

He ain't s. . . let me tell ya somethin...

Weinberg: Sit down a second and we can talk.

Ciuzio: Now let me explain it ta ya this way. Now that

we're here, see, cause | make. . . things happen. With a

little miscommunication with the other two guys and you,

you get nervous ya know, makin’ a big deal. It's a big deal

if it goes wrong.

Weinberg: Yeah, but you... we gotta make sure...

Ciuzio: You can’t usurp the guy’s position.

Weinberg: Ok, but you understand. . .

Ciuzio: He just left, ya understand’. . .

Weinberg: we're talking. . . all right, we're talking about

if he trusts you...

Ciuzio: Who? The Congressman? .. .

Weinberg: . . . and if you if he trusts you, right’. . .

Ciuzio: Yeah.

Weinberg: Let Tony hand you the money in front of him.

Long as we know he’s getting money...

“1 Government exhibit 2(b) and (c) at 1.

47a

Ciuzio: That’s ok. But don’t say hey, Congressman. . . ya

know what I mean? Ya cant make hima... hood, ya

know.

Weinberg: No, but he’s gotta know that he’s getting paid

to do it, ya know the. .

Ciuzio: Maybe, he’s got the answer... .

Weinberg: But the guy ain't lilly white, ya know. God

forbid he backs out.

Ciuzio: Listen, listen to me...

Weinberg: . . . if somethin goes wrong, it’s our jobs...

Ciuzio: Listen to me, do you trust, ahh Bill?

Weinberg: Yeah.

Ciuzio: I mean he talks good about you.

Weinberg: Hey...

Cjuzio: All right. If you don’t feel that way about him, ya

know, What... Wha... I know ya gotta little problem

here with Tony. Because if you say suppositions . .. . there

the ... guy, one time, the guy came ... This is the

Congressman, | brought. . . pictures In the newspaper to

rove it to ya. This is the guy. I gave it to Bill, show it to

Mel, I show it to Tony...

Weinberg: Well, he knows he’s getting money right?

Ciuzio: He ain't taking no... money in his hand,

Weinberg: All right, you'll take it...

Ciuzio: All right...

Weinberg: . . . he'll hand it to you.

Ciuzio: .. . and I want to tell you another thing. . .

Weinberg: Yeah.

Ciuzio:. . . and nobody out there's getting no. . . money.

['ll have no response to the money. If, if nottin happens

here, if you give us the money, he don't do it, I'll give you

the... money back.

Weinberg: Well, that ain't the idea. The problem ya know,

Gino let me tell you...

Ciuzio: Ya know this has, like, been a one-way deal.

Weinberg: We we look, we don't mind paying the money.

But we gotta problem that we go to Yassir and we say ta

him, we laid it out, he said did you give it to the Con-

gressman, we don’t care the first twenty-five goes to him,

the rest I told ya, I'll deliver to you.

Ciuzio: I told ya before on the phone, because it’s hard on

the phone, ya know what I mean? I can’t tell you...

you're gonna get killed by a... car tomorrow.

Weinberg: Yeah but you don’t

Ciuzio: We understand that

Weinberg: . . . we're not, Tony'll tell him that we're not

asking for a guarantee.

Ciuzio: I don’t wanna have to give the guy a... bribe.

That’s what I'm telling ya.

Weinberg: Well...

Ciuzio: It ain't necessary, ya know what I mean?

(Tony DeVito (in another room): How bout some ahh, do we

have any club soda?]

Weinberg: But the idea...

Cuizio: I don’t like to talk ta him like that. I talk tahimina

different way.

Weinberg: It’s not that, hey... we believe...

Ciuzio: Here's the kind of guy that says listen now, hey ifit

helps you, God bless you. I don’t want nothing, I owe you

one, and he goes, listen if you could find a buyer for my real

estate...

Weinberg: But this is a different. . . but this is a different

story Bill told us, now wait a second, let me tell ya...

Ciuzio: I don’t know what Bill told ya.

Weinberg: I'm talking... and Weisz.

Ciuzio: We went through this once before you and 1...

Weinberg: Weisz said to me, the way we laid it out, the

guy was coming here and we were to tell him that it’s a

undred thousand for him. . .

49a

Ciuzio: No sir, no. . . way you gonna tell him that. . . =

Weinberg: No no, I laid the whole thing out with him. . .

Ciuzio: . . . Because he was putting stipulations . . .

Weinberg: I laid...

Ciuzio: about the money...

Weinberg: Well maybe he has stipulations . . .

Ciuzio:. . . the escrow, front money now, and. . . this and

that guarantee.

Weinberg: No no, he no no. The problem was, here’s the

deal I made with him. Twenty-five now to him and he says

it goes one on one in the room. I says good enough, one on

one. I will not be there, it'll be just Tony. . .

Ciuzio: I'll tell you what his answer will be. . .

Weinberg: Wait, wait let me finish. . .

Ciuzio: . . . he’s gonna have ta talk to him.

Weinberg: Wait, second thing was that the balance of the

money, when we call up within a week or two, ta go, I

would deliver him the balance when I say go, anywhere he

wants in a suitcase, all right, the other two hundred and

twenty-five thousand, and that’s it and then we don’t even

... Want to see you...

Ciuzio: Who you gonna deliver it to?

Weinberg: It’s to Weisz.

Ciuzio: Ohh, that’s all right with me, I don’t givea...

Weinberg: All right? And there was no, I don’t ever want

to see the Congressman no more. All we want to know is

the guy is working for us, he’s gonna do our bidding and

that’s all we want to know.

Ciuzio: went through all this. . . . If he’s here, I've told

him the whole. . . thing. Know what his answer was to

me?

=Id. at 2-6.

50a

Weinberg: . . . what?

Ciuzio: Naah, I owe ya one. But you know I've got two

pieces of property in ahh... St. Petersburg. Yeah it’s

sold. That’s the way he talks.

Weinberg: See we can. . . we can't, we look. . . let me

explain. We can't pay a quarter of a million dollars and the

guy is gonna say he owes ya one...

Ciuzio: Let me tell ya somethin, I’m gonna tell... I’m

gonna punch a hole right in your logic . . . You're gonna

make a. . . hoodlum outta him for twenty-five thousand.

You're gonnatry...~

Although we do not have a recording of the conversation, the

testimony shows that during the Ciuzio-Amoroso meeting,

Ciuzio also tried to impress Amoroso with the fact that no

money should be offered to the Congressman.*

Finally, the Congressman met with Amoroso alone. Soon

after sitting down in the privacy of a separate room, Amoroso

proposed a payment of money to Kelly. The Congressman told

him that he was interested in the investment in his district but

that whatever arrangements Amoroso had about paying

money for his help with immigration, he had “no part in that."

Amoroso was not deterred. He intimated that the large invest-

ments could very well be made somewhere else in the country

and brought up the illegal payments again. Again the Con-

gressman told him that he was there to talk to him about the

investments in his district and tried to keep the conversation

on that subject. At the trial, Amoroso explained his tenacity:

“Well, because I wasn’t clear in my mind as to what the Con-

gressman was really thinking about or what he was sure of.

Until I could clear it up in my own mind, I did not want to give

him any money.”” When it appeared that Amoroso was not

“Id. at 8-9.

Tr. at 1139-40, 1171-72, 1175.

~ Government exhibit 2(b) and (c) at 16-17.

*Tr. at 1178.

5la

making headway on the bribery offer to the Congressman, a

government attorney, John Jacobs, who was stationed in a

basement room set up to monitor the happenings upstairs

called up from downstairs to Amoroso.” Although the house

was wired and set up with cameras and recording equipment,

no record of the conversation was made. What transpired on

that telephone and the purpose of the call were the subject of

the most vague recollection, but it was ultimately conceded by

both parties that Jacobs told Amoroso that Kelly was “being

cute." Amoroso stated that he received no instructions from

Jacobs, although Jacobs was monitoring meeting for the pur-

pose of giving advice. At any rate, after the telephone call

Amoroso persisted with Kelly and not too long thereafter,

when $25,000 was displayed to him spread out in packets of

$100 bills, Kelly accepted it as the initial payment of a $100,000

bribe.”

Up to now, courts have been unambiguous in recognizing the

function of law enforcement as preventing and detecting crime

and apprehending criminals. " There is also general acceptance

of the proposition that in order to fulfill these traditional func-

_tions, it might become necessary to resort to those techniques

which frequently give rise to the claim of entrapment, i.e.,

artifice, deceit, and stratagem." I fully appreciate the need for

and the value of aggressive, resourceful, and innovative law

enforcement in our modern society which far too often is beset

*~ Government exhibit 2(b) and (c) at 18; Tr. at 1175-80.

*Tr. at 1181, 1392.

“Government exhibit 2(b) and (c) at 28.

” United States v. Russell, 411 U.S. 423, 434, 93 S.Ct. 1637, 1644,

36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 372,

78 S.Ct. 819, 820, 2 L.Ed.2d 848 (1958); Sorrel/s v. United States, 287

U.S. 485, 441-42, 53 S.Ct. 210, 212, 77 L.Ed. 413 (1932).

Russell, 411 U.S. at 434, 93 S.Ct. at 1644; Sherman, 356 U.S. at

372, 78 S.Ct. at 820; Sorrells, 287 U.S. at 441, 53 S.Ct. at 212.

with diabolical criminal conduct so sophisticated as to be nearly

impossible to detect. I agree with Judge Kaufman that,

“carefully devised and supervised covert investigations often

are the only means of discovering breaches of the funcamental

mandate of one’s office.”

However, as Abscam affected Kelly, it was not the type of

carefully devised and supervised covert operation generally

accepted by the courts. In many respects it differed sharply

from traditionally accepted types of operations.

I know of no reported case where at least some inkling of

corruption was not the forerunner of undercover activity in a

bribery prosecution. When Weinberg first passed the word

that money would be paid to a Congressman for immigration

help and that large amounts of money were available for in-

vestment, no one in the government had even the remotest

suspicion about the existence of any prior, on-going, or immi-

nent criminal activity of this type either as to its existence in

general or the participation of any individual.” In other words,

there was nothing to trigger traditional law enforcement acti-

vities until the government made its overtures through those

who were attracied to the honey pot and thus became mid-

dlemen.

The government, for obvious reasons, vehemently seeks to

disclaim any government involvement beyond Weinberg and

to disown Rosenberg, Weisz, and Ciuzio as its agents. But this

position is patently untenable in the face of the evidence. * It is

obvious that although Rosenberg, Weisz, and Ciuzio were

unaware of it, they were programmed to one end, i.e., to bring

in some Congressman, and in this case it was Kelly, for the

® Alerandro, at 43.

®Tr, at 1352-56.

4 Sherman, 356 U.S. at 374-75, 78 S.Ct. at 821-22; Johnson v.

United States, 317 F.2d 127, 128 (D.C. Cir. 1963),

58a

purpose of accepting a bribe. Amoroso admitted this on cross

examination:

Q: Soon December 19, 1979, you were offering a bribe to

Congressman Kelly?

A: Through Mr. Ciuzio, yes. ”

Thus, as it affected Kelly, Abscam, was not a traditional

sting operation. It had a feature unknown to any sting opera-

tion that I know of. This consisted of a recruiting agent who

was programmed to go out and use a formula supplied by the

point man of the operation, which included a strong legitimate

attraction. This formula containing legal and illegal bait was

used to persuade the Congressman to become a sting patron.

The ordinary sting, on the other hand, is nothing more thana

passive operation which serves as an attraction for those who

become criminals under their own power, certainly with no

help from anyone connected with the sting. This difference can

be illustrated as follows. Persons who patronize a “fence”

operation set up by police are thieves who have already com-

mitted crimes when they contact the sting. In another stand-

ard motif, police officers disguise themselves as elderly per-

sons sitting in a park which has been plagued by robberies and

muggings and, while under proper surveillance by cooperating

officers, wait to be victimized by whoever gets the notion torob

them. In neither instance do we have officers, or persons

programmed by them, canvassing the neighborhood with

legitimate incentives designed to encourage apparently in-

nocent persons to take advantage of the sting operation.

The unique nature of Abscam was not lost on some of the

participants. Robert C. Stewart, the Attorney in Charge of the

Newark Strike Force, wrote that there is a fundamental differ-

ence between the subject matter of a conventional “sting”

operation and that of the present operation. In the former, the

subject matter under discussion (such as a stolen television set

in the hands of a junkie thief) is contraband per se and any

®Tr, at 1123.

dda

discussion about it is ipso facto incriminating. The suspect's

mere presence in an ostensible “fencing” location with an item

which is being offered for sale at a fraction of its face value

provides more than an adequate basis for further investigative

action—namely, recording the suspect's conversations about

the contraband item. In the present investigation, the circum-

stances are fundamentally different because there is nothing

inherently illegal about either the nature of the meeting place

or the general topic of conversation. Indeed, absent specific

facts to the contrary, there is an initial presumption of legality

because of the powitions which the suspects occupy and because

of the ostensibiy legitimate nature of the things under

discussion—whether those things be the operation of a busi-

ness, economic development in a particular area, or the protec-

tion of the human rights and indeed the very life of a foreign

national who is touted as nothing more than a legitimate en-

treprenauer. Hence, the decision for further investigative ac-

tion cannot be controlled by the criteria which govern such

decisions in a conventional “sting” operation, but must depend

instead upon the demonstrable existence of special facts which

infect the particular transaction with illegality. "

In another memo Mr. Stewart emphasized the extent to

which Abscam deviated from a conventional sting operation:

Usually, there is little or no evidence that the offical

knows anything about the intermediaries’ representa-

tions. There may be little, if any, extrinsic information

which would suggest that the particular offical is corrupt.

On the contrary, most of the officials begin the conversa-

tion with disclaimers of criminal intent and offers to hand-

le the problem in a perfectly correct and lawful manner.

The Undercover Operatives then press, and they dangle

large sums of money in front of the official—initially with

promises that he will never be required to deliver the quid

pro quo because the payment is only insurance against a

remote contingency. The official relents and accepts the

payment—in some cases offering to perform further crim-

inal acts, in others without providing additional evidence

® Myers due process exhibit 15 at 3-4.

55a

of predisposition or criminal intent. In several cases the

payment was refused.

All of this is very different in kind and quality from a

conventional sting operation. “

Persons at the upper levels of the Department of Justice and

the FBI apparently assumed that the Congressman who would

show up at the townhouse, or at any other meeting place they

chose, would have already agreed to take a bribe directly or

indirectly, and have thus characterized the Congressman’s

actions as “self-selecting.” However the operatives had no

reason to believe that, at least so far as Kelly is concerned,

since the script given to Ciuzio had both legal and illegial bait;

and Kelly’s appearance at the townhouse did not indicate which

type of bait he was responding to," As a matter of fact, the

operatives in the field did not believe that Kelly came for the

purpose of getting a bribe. Weinberg testified that the reason

he was not going to give the money to the middlemen as

conduits for the Congressman was because he believed that if

he did so “(t]he would go north with it” and the Congressman

would never know anything about it. " He also said: “I believe if

we gave him [Ciuzio] the money he would have kept the

money.”"*"

Although the Department of Justice and the FBI disavow

any purpose of testing the virtue of members of Congress,"

* Myers due process exhibit 16 at &-9,

* At least one public official came to the townhouse without any

criminal intent. Senator Larry Pressler came to the townhouse and

left when he discovered that a bribe was involved. It is difficult to

understand how the government can characterize this procedure as

“self-selecting” when it does not know what reason has brought a

public official to its door, See tr, at 1389,

"Tr, at 3809,

Tr, at 3817.

FBI Director Webster said, “We are not in the business of

testing morality.” Myers due process exhibit 110 at 50,

56a

that in fact appears to have been the sole objective of the

operation. In the case of the defendant Kelly the evidence

points unwaveringly to this conclusion. Given the concession

that there was not even a scent of suspicion of criminal conduct,

past, present, or imminent, or of criminal behavior by Kelly or

any other individual, that no investigation in this regard was

underway,” and the firm belief that if Ciuzio got his hands on

the money the Congressman would never know anything about

it, no other objective can emerge except that of testing virtue,

or as Judge Kaufman stated in Alerandro, “to test the faith of

those in the high echelons of government.’ Either that, or the

patently unacceptable objective—prosecution for the sake of

prosecution.

As Judge Newman observed 11. yers, this added dimension

to the law enforcement process, “inevitably raises sensitive

issues of public policy and public law.” If called upon to debate

the wisdom and/or propriety of accepting this notion as an

added function of law enforcement in our system, J would

unhesitatingly urge that it not be done. I readily admit that the

notion is offensive to me. Government agents, hard about the

business of corrupting public officials who are free of suspicion,

essentially subvert our government; and on its face this pre-

sents an unwholesome spectacle. This is particularly true with

respect to the manner in which Kelly was handled.”

* See note 33 and accompanying text.

“675 F.2d at 43.

4 Myers, 635 F.2d at 934. That court expressly reserved judgment

on the due process claim, /d, at 938 n.6,

* On January 7, 1981 at a bench conference during the trial of this

case, | expressed strong disenchantment when I said: this case “has

an odor to it that is going to be cleared away before anybody gets

convicted, It has an odor to it that is absolutely repulsive. Let's get

along with the trial... . But it stinks.” Tr. at 2547.

57a

I am aware of the admonition to trial judges that they are not

privileged to dismiss a case against a criminal defendant be-

cause they do not like the case or because they have some

strong personal aversion to the government’s conduct, and

that this standing alone is not a sufficient basis for determining

that such conduct is outrageous to the point of depriving a

defendant of due process.” But, at the same time, it is inevita-

ble that a strong visceral reaction provides the starting point

or triggering mechanism which ultimately leads to the assess-

ment that condut is so outrageous that it transcends any stand-

ard of fundamental fairness. Aware that what is repugnant to

me may not be repugnant to the Constitution, I have sought to

identify some discernible line between that conduct which

arouses my personal resentment, and that which falls short of

minimal standards of fairness.

To identify that line I need not resolve the debate over the

validity of virtue testing because it is not necessary for the

disposition which I make of this case. Assuming arguendo that

this new function of law enforcement is an acceptable proposi-

tion, the application of the testing procedures in this case

patently exceeds the outer limits of any concept of fundamental

fairness.

The litmus test—or temptation—should be one which the

individual is likely to encounter in the ordinary course.” To

“ Hampton vy. United States, 425 U.S. 454, at 490, 965.Ct. 1646 at

1650, 48 L.Ed.2d 113 (plurality opinion of Rehnquist, J.), 494

(Powell, J. concurring); Russell, 411 U.S, at 435, 93:5.Ct. at 1644,

* Assistant Attorney General Philip Heymann testified before the

House Judiciary Subcommittee on Civil and Constitutional Rights in

hearings, immediately after Abscam became public, that it is a

“guarantee of fairness” to the individual when the transaction is

modeled after reality “because it means that anybody who is brought

in, is brought in with the same type of temptations that we know is

floating out there.” Myers due process exhibit 110 at 34. Director

Webster agreed. /d. at 64. No one in the FBI knew that any Con-

gressman was illegally selling his vote. And, of course, no one knew

that anyone was offering a Congressman money after he had agreed

to something for legitimate reasons.

5&a

offer any other type of temptation does not serve the function

of preventing crime by apprehending those who, when faced

with actual opportunity, would become criminals. Instead, it

creates a whole new type of crime that would not exist but for

the government’s actions.

When improper proposals are rejected in these virtue-

testing ventures, the guinea pig should be left alone. In ordina-

ry real life situations, anyone who would seek to corrupt a

Congressman would certainly not continue to press in the face

of a rejection for fear of being reported and arrested. The FBI

of course had no such restraints in this case.

After Kelly rejected the illegal part of the offer when Ciuzio

first proposed it, that should have ended the matter. However,

since the government did not make this first offer through an

official, nor did it monitor Ciuzio when he made the offer on

behalf of the government, it did not know that Kelly had

already rejected the pay-off.

If the government did not end the testing of Kelly when he

rejected Ciuzio’s offer because of its ignorance of Kelly's re-

sponse, it should have ended the testing when Ciuzio reported

to Amoroso and Weinberg on January 8th, in vehement lan-

guage, that Kelly had rejected the offer and insisted that no

offer be made.

Finally, after the government heard Kelly himself reject

Amoroso’s offer, with the words “I got no part in that,” the

testing should have ended. Since the government made its

initial offer through Ciuzio, it had no way of knowing whether

Kelly was just “being cute” or was in fact rejecting the offer.

However frail one’s integrity might appear, it should not be

subjected to repeated assaults because of some overzealous

attorney’s cynical determination that the person is just “being

cute.” In the absence of any credible evidence that the show of

integrity is some kind of ploy, or some evidence that criminal

conduct has been committed by the target, he should be

deemed to have passed the test.

59a

Recognition of this minimal standard of fundamental fair-

ness apparently prompted FBI Director Webster, according to

Assistant Attorney General Philip Heymann, to direct the

agents to be sure that they turn away anyone if there was any

ambiguity about whether he was at the townhouse to take

hundred dollar bills in exchange for a legislative act. Whether

this was out of deference to a defendant's rights, or out of a

desire to safeguard their prosecution, the result is the same.

This balance which the government itself has struck leaves me

* The obvious possibility that a Congressman might be brought

into the Abscam lair despite his complete lack of criminal intent was

anticipated by some people in the Department of Justice and the FBI.

Assistant Attorney General Philip Heymann met with FBI Director

William Webster in approximately September 1979 and discussed

the possibility. Heymann has testified that they were concerned

that nobody was being led into something by mistake and we

Were satisfied that the situations we were creating looked

unmistakenly corrupt.

We I think after that meeting reiterated directives which go out

to the prosecutors from me and the agents from Webster to just

be sure that we—I think it was this clear and I think it's the way

Judge Webster put it—"Be sure that we turn away anybody if

there's any ambiguity about it, if we are not sure that the guy is

coming in to take hundred dollar bills fora legislative act, turn

him away.” (United States v. Jenrette, Cr. No. 80-289 (D.D.C..

due process transcript of May 14, 1981 at 816-17) (emphasis

added), |

It is obvious that Amoroso knew nothing about this precaution (see

text accompanying note 26 supra). In fact he testified that his super-

iors gave him almost no legal or other instructions on how to conduct

meetings with Congressmen. He was never instructed on the law of

entrapment. .Wyers due process tr. at 3924, 4131; /enrette trial tr. at

583. He did not recall discussing the elements of the crimes of bribery

or conflict of interest. Myers due process tr. at 3937-39. Most

astonishingly, he testified he received no instructions from his super-

visor, John Good, and that he was operating freely and on his own, tr.

at 1191; Myers due process at 3924-25; and that no one ever told him

that if a public official said he did not want money for an official act he

was to terminate the contact. Tr. at 1182. The only direction he got

was the attorney's calls from downstairs urging him to press on.

60a

comfortable with the feeling that my decision to set aside the

conviction of Kelly is based on something more than just an

admittedly strong personal sense of revulsion. It is all the more

comforting to know that the Department of Justice and the

Bureau apparently are willing to live with this dividing line and

do not regard it as a handcuff on valid police authority.

It may be that the initial rejection does not mean we have an

entirely saintly public servant who does not “lust in his heart,”

and who is not just “being cute.” Moral rectitude, fear, uncer-

tainty, or some other reason may prompt it, but a rejection,

sincere or otherwise, in the ordinary course of conduct in-

sulates the official from corruption, and this is society's great

interest.

Obviously we like to think, and we hope, that our Con-

gressmen and Senators, and indeed all public servants, are

strong enough to withstand any imaginable pressure and re-

ject any type of temptation no matter how attractive, and walk

away. When they succumb to temptation we are disappointed

and chagrined, as I was at the sight of Kelly stiffing $100 bills

into his pockets. But in reality, the hard fact is that our public

servants are not recruited from the seminaries and monastar-

ies across the land and that they are plagued by the frailties of

human nature.

Indeed, the Congress recognized this as a fact when it

enacted the statutes (specifically mentioning Members of Con-

gress) which make it a criminal offense for anyone to give,

offer, or even promise anything of value to any public official in

order to influence his official conduct and also for a public

official to ask, receive or agree to receive anything of value in

return for his official acts.** Thus, both parties to the transac-

#18 U.S.C. $201. Bribery of public officials and witnesses.

(a) For the purpose of this section:

“public official” means Member of Congress... .

(b) Whoever, directly or indirectly, corruptly gives, offers or

gg anything of value to any public official or person who

as been selected to be a public official, or offers or promises any

bla

tion are constrained. This statute obviously was not enacted in

the hope that it would be violated. It has no purpose to bring

out the best there is in a person, but rather to inhibit the

emergence of the worst in him, and thus protect the system.

The rare instances of known breaches have been met head on

by firm, vigorous prosecutions which have undoubtedly served

the exemplary purpose of deterrence.

Assuming arguendo that public officials need even more

attention from law enforcement of the type we are dealing with

in this case, it should be done within the context of the purposes

and efficacy of the statute. Since the statute penalizes both

parties to a bribe, it is highly unlikely that anyone other than a

government agent immune from prosecution for violating this

public official or any person who has been selected to be a public

official to give anything of value to any other person or entity,

with intent—

(1) to influence any official act; or

(2) to influence such public official or person who has been

selected to be a public official to commit or aid in committing, or

collude in, or allow, any fraud, or make opportunity for the

commission of any fraud, on the United States; or

(3) to induce such age official or such person who has been

selected to be a public official to do or omit to do any act in

violation of his lawful duty, or

public official, directly or indirectly, corruptly asks, demands,

exacts, solicits, seeks, accepts, receives, or agrees to receive

anything of value for himself or for any other person or entity, in

return for:

(1) being influenced in his performance of any official act; or

(2) being influenced to commit or aid in committing, or to

collude in, or allow, any fraud, or make opportunity for the

commission of any fraud, on the United States; or

(3) being induced to do or omit to do any act in violation of his

official duty... .

Shall be fined no more than 320,000 or three times the monetary

equivalent of the thing of value, whichever is greater, or imprisoned

for not more than fifteen years, or both, and may be disqualified from

holding any office of honor, trust, or profit under the United States.

H2a

statute would make repeated flagrant attempts at corrupting a

Congressman for fear that the Congressman would notify the

FBI. The penalty clause in the statute is a strong deterrent for

such conduct. If no one except the FBI can make such persis-

tent attempts, this procedure does not catch criminals, but

creates them.

What the government attorney perceived as “being cute”

may very well have been a brief victory of conscience over

temptation which was a direct result of awareness of that

penalty clause. I believe that in the circumstances of this case,

any further pursuit and pressure on the part of government

agents was nothing short of outrageous. A suspicion-free sub-

ject should be exempted from further testing on the basis of

winning the first battle against temptation. He should not be

required to win a prolonged war of attrition against chicanery.

“Human nature is weak enough and sufficiently beset by

temptations without government adding to them and generat-

ing crime.”” If the government had no knowledge of Kelly

doing anything wrong up to his rejection of illicit money, its

continuing role as the third man in a fight between his con-

science and temptation rises above the level of mere offensive-

ness to that of being “outrageous.” No concept of fundamental

fairness can accommodate what happened to Kelly in this case.

IV.

I am keenly aware that the delineation of the conduct cir-

cumscribed by the due process defense is elusive. As the Third

Circuit said, there is a tendency for the due process defense to

overlap with the entrapment defense.’' However, I am satis-

fied that this is one of the rare cases where there is a role for the

court that the jury cannot and should not play. To identify that

role, I return to basic principles.

® Sherman, 356 U.S. at 384, 78 S.Ct. at 826 (Frankfurter, J.

concurring).

3 Jannotti, at 608; Hempton, 425 U.S. at 494-95, 96 S.Ct. at 1652

(Powell, J. concurring)

63a

The function of law enforcement is to prevent crime and

catch criminals. Conversely, law enforcement exceeds its

bounds when it manufactures crime and creates criminals. The

manufacture of crime and creation of criminals have been spe-

cifically prohibited by numerous cases. ™

The entrapment defense furthers this policy of preventing

conv ns of the “unwary innocent” by inquiring first,

wheti.. the defendant was induced by the government to

commit the offense, and, second, whether he was predisposed

to commit it.* In most cases,the entrapment defense alone

insures that the government does not successfully prosecute

cases where it has manufactured crime or made criminals. For

example, where it is not illegal to propose the commission of

the criminal act, repeated urgings to commit the crime are

appropriately and adequately considered within the context of

the jury’s inquiry as to whether those urgings constituted

“inducement” and whether the defendant was predisposed to

commit the crime.

In rare cases, the jury’s analysis of pre-disposition is not

alone dispositive of the question of the government’s involve-

ment in the manufacture of the crime. Trial courts have been

cautioned that rather than by general rules, a determination of

whether due process violations are fatal to successful prosecu-

tion shall be made on a case by case basis, depending on the

particular circumstances in each one. In discharging this

obligation in the case at bar, the starting point is an examina-

tion of the statute itself—its purpose and effect. The statutory

scheme precludes even the predisposed from committing the

crime under real-world circumstances after the target makes

one refusal. This situation contrasts sharply with the situation

® Russell, 411 U.S. at 434, 93S.Ct. at 1644, quoting Sherman, 356

U.S. at 372, 78 S.Ct. at 820, citing Sorre/ls, 287 U.S. at 442, 53 S.Ct.

at 212.

* Sherman, 356 U.S. at 372, 78 S.Ct. at 820.

4 United States v. Burkley, 591 F.2d 903 (D.C. Cir. 1978).

64a

in Russell where the Court specifically noted that the govern-

ment agent did not violate any federal statute.” Where the

government’s overtures to the defendant fail substantially to

model real-world behavior, the results of the government con-

duct, while satisfying the technical elements of the bribery

statute, constitute a crime which would never otherwise

occur.” Absent the government’s conduct in this case, Kelly,

even if predisposed, would have had no opportunity to act upon

his predisposition in the way he did. Determination that

government overtures which produce such an opportunity are

not fundamentally fair because they do not comply with the

real-world workings of the statute is not something which the

jury has been instructed to consider and must therefore be

considered by the court. Due process focuses on whether “fair-

ness has been denied an accused in light of all the circum-

stances.”

The broader focus of the due process defense—beyond in-

ducement and predisposition to, in this case, an examination of

government conduct in light of the statute allegedly violated—

precludes governmental conduct which so deviates from real-

world constraints that it results in a crime which would never

have reached fruition but for the government’s involvement.

Governmental manufacture of crime in this sense is as odious,

and as prejudicial to a target’s rights, as is the governmental

snaring of the “unwary innocent” which we term entrapment.

To reiterate, I do not believe that testing virtue is a function

of law enforcement. But this personal belief aside, and assum-

ing that it is, the method of testing must be fair. If after an

illegal offer is made, the subject rejects it in any fashion, the

%411 U.S. at 430, 93 S.Ct. at 1642.

*The Court in Russe// was careful to point out that the key

ingredient in the drug manufacture, which was supplied by the

government, was obtainable from other sources. 411 U.S. at 431, 93

S.Ct. at 1642.

* Hampton, 425 U.S. at 494 n.6, 96 S.Ct. at 1652 n.6 (Powell, J.

concurring).

65a

government cannot press on. Certainly when a person recog-

nizes the difference between the legal and the illegal, and

rejects the latter, the person should be free of further testing

by a device which only government agents could have the

audacity to use in the face of the penalties provided for their

conduct. This standard creates a workable, discernible line

separating the merely offensive and constitutionally imper-

missible. Crossing this line is patently outrageous. A person

corrupted under circumstances which only police officials can

create or by a process which only the authorities are licensed to

use, has been made into a criminal by his own government.

VI.

At the outset, defendants Weisz and Ciuzio made motions to

sever on the basis of Kelly’s anticipated defense. During the

trial, these defendants made several motions for a mistrial and

severance for reasons which were not frivolous. Each time, the

court sought to repair the damage with curative instructions to

the jury. But upon consideration of this circumstance, the

disparity in the amount of evidence as it related to Kelly on the

one had and the defendants Weisz and C iuzio on the other, and

in light of the defendant Kelly's bizarre defense™ and the

* During the course of the trial, in an apparent attempt to escape

conviction and at the same time hang on to some remnant of respecta-

bility, Congressman Kelly presented the bizarre, nearly farcical

defense that he was conducting his own investigation of the reason

why he had been surrounded by shady characters. He suggested that

he was being targeted for destruction by his political enemies who

resented his independence and courage in the political arena. Not a

scintilla of evidence which would support this theory ever surfaced in

this case.

However, as the case unfolded, I was plagued with the unsettling

realization that with this loose cannon rolling around on the deck of

the criminal justice system such a thing could indeed occur. Also, |

became aware that even if a victim successfully invoked the defenses

of selective prosecution and or entrapment, this would be of little

solace to him. for he nevertheless has been destroyed as a voice in

66a

manner in which it was put forth, I conclude that Weisz and

Ciuzio were prejudiced to the point they should be granted a

new trial:

An appropriate order will be entered.”

public affairs. This great potential for a type of mischief, which

hopefully will always remain alien to our system, standing alone, may

be a compelling justification for outlawing the government's conduct

against Kelly as a law enforcement procedure. If we condone such a

measure, the fall-out might well be intolerable for us all.

Application has been made to reopen the due process hearing

based on allegations contained in the affidavit of the late Mrs. Cynth-

ia Marie Weinberg. The relevance of this material to the task before

the court is not clear. In any event, in light of the disposition of this

case and the reasons therefore, the motion will be denied.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.