# Petition — Weisz v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1027

## Text

—EE——eGScVCCOoOooe
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In The BEC 22 1983

Supreme Court of the Wnited States

+

October Term, 1983

STANLEY WEISZ,
Petitioner,
vs.
UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT

MICHAEL F. DENNIS
Attorney for Petitioner
170 Old Country Road
Mineola, New York 11501-4308
SAUL I. WEINSTEIN
Attorney for Petitioner
170 Old Country Road
Mineola, New York 11501-4308
(516) 741-7050

* NJ (201) 257-68S50°NY (212) 840-9494°PA (215) 563-5587
MA (617) 542-1114°DC (202) 783-7288¢USA (800) 221.0008

—s

QUESTION PRESENTED FOR REVIEW

Does the Due Process Clause require the government to
preserve all eviderice it gathers in an investigation for criminal
prosecution or may it arbitrarily decide which evidence is to be
preserved and which is not?

ii

TABLE OF CONTENTS

Page
Question Presented for Review ...........ccccccccccees i
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Constitutional Provision Involved ...................4:. 2
Statement of Méaterial Facts ...............cccccecceees 2

Reasons for Granting the Writ:

The Due Process Clause requires the government to
preserve all evidence gathered during the course of an

investigation, be it incriminating or exculpatory. .... 5
EE Re eee 9

TABLE OF CITATIONS
Cases Cited:

Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S.
ED 6 bn 0 nes vccbescone shudupyscovcses 6

United States v. Bryant, 439 F. 2d 642 (D.C. Cir. 1971)

Statutes Cited:

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Ld EE Preoer etre
SEs GEE: 6 occccdccccchqneneuenssy ustauaenuee
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United States Constitution Cited:

TL. (.wian thoes ckseetaevageheet eoxadleee
Other Authority Cited:

FBI Manual of Administrative Procedures and Operations,
NE DEPRES GED 0.60 cc ncobbieh e e e ee

In The

Supreme Court of the United States

oe
October Term, 1983

STANLEY WEISZ,
Petitioner,
vs.
UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT

To the Chief Justice and the Associate Justices
of the Supreme Court of the United States:

Petitioner, Stanley Weisz, hereby petitions for a writ of
certiorari to review the decision of the United States Court of
Appeals for the District of Columbia Circuit affirming the
conviction of petitioner for conspiracy to accept a bribe in violation
of 18 U.S.C. §371; aiding and abetting the acceptance of a bribe
by another in violation of 18 U.S.C. §2 and travel in interstate
commerce for the purpose of effectuating the aforesaid bribery
in violation of 18 U.S.C. §1952.

OPINIONS BELOW

The District Court did not render any opinion.' The opinion
of the United States Court of Appeals for the District of Columbia _
Circuit, which is reported at 718 F.2d 413 is contained in the
appendix to this petition.

JURISDICTION

The decision of the United States Court of Appeals for the
District of Columbia Circuit of which review is sought is dated
September 13, 1983. Petitioner filed a timely petition for rehearing
in the District of Columbia Circuit which was denied on November
10, 1983. This Court has jurisdiction to review the judgment hereby
by reason of the provisions of 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISION INVOLVED
Amendment V of the United States Constitution provides:

**. . .nor shall any person. . . be deprived of life,
liberty, or property without due process of
iia a”

STATEMENT OF MATERIAL FACTS
Melvin Weinberg is a convicted swindler who was employed

by the FBI to attempt to bribe congressmen in a sting operation
known as ABSCAM.

1. A decision was rendered on the first trial of petitioner. This first trial
resulted in a verdict that was set aside and a new trial was ordered. The prior
Cee agains « 329°. Supp. 377. This petition springs from the second
trial of petitioner.

a *

Stanley Weisz, petitioner herein, met Weinberg through an
introduction by one, William Rosenberg. Rosenberg told Weisz
that Weinberg represented very wealthy Arabs who needed to be
introduced to congressmen and senators since they anticipated
making huge monetary investments in the United States and
wanted to meet influential persons. Rosenberg inquired if Weisz
knew any congressmen and Weisz responded in the negative.

Some time later, Weisz met with a client of his, Ciuzio, in
Florida and quite accidently advised Ciuzio that he had been asked
if he knew any congressmen. Ciuzio told Weisz that he was friendly
with Richard Kelly, then a congressman from Florida.

On his return to New York, Weisz told Rosenberg that he
had a client who was friendly with a congressman of Irish ancestry
(Weisz had forgotten the congressman’s name) and Rosenberg
relayed this information to Weinberg. Weinberg told Rosenberg
that the Arabs would pay $250,000 to be introduced to the
Congressman and Rosenberg advised Weisz of this offer.

On the trial of this case, the government contended that Weisz
was aware that at least part of the money being offered was to
be a bribe to the congressman. Weisz, on the other hand,
contended that he understood that this money was to be paid
to Ciuzio for making the introduction and that Ciuzio was going
to give him part of it.

The evidence in this case consisted mainly of conversations
recorded by the government. Although the government recorded
nearly all of the conversations between its ABSCAM operatives
and the targets of the investigation on audio tape, video tape,
or both, two crucial telephone conversations, initiated by
Weinberg, were not recorded. Indeed, the substance of these
conversations was not even reduced to an FBI form FD 302. Both
of these conversations occurred on December 21, 1979.

On that day, Weinberg called Weisz to discuss a demand
by Ciuzio to place the $250,000, in escrow, to insure its payment
to Ciuzio when he introduced the congressman to Weinberg. Weisz
testified on trial that he insisted during that conversation that
Weinberg pay the $250,000 to a Florida lawyer of Weinberg’s
choice, in escrow, until the introduction was arranged.’
Immediately thereafter, Weinberg called Ciuzio and discussed the
escrow demand with him. The substance of these two conversations
was crucial to petitioner’s defense. Manifestly, if petitioner was
about to engage in a bribery of a congressman, he certainly would
not seek to memorialize that bribery in an unenforceable agreement
with an unknown lawyer. Tape recordings of those two
conversations would have been immeasureably helpful in
petitioner’s defense. However, at trial, the government failed to
produce recordings of these conversations.

During Weinberg’s testimony he was asked why there was
no record of these conversations and he stated that when he started
to make these calls he had his tape recorder attached to the
telephone, but when individuals unconnected with ABSCAM
entered the room he said he removed the recording apparatus
from the phone. The court then asked:

**The Court: Why didn’t you wait until they
went out of the room to make a phone call, you
didn’t have to make it then, did you? A. No,
not necessarily but I didn’t.”’

Later testimony established that both Weinberg and the FBI
agents who supervised him deliberately failed to make a written

2. The Court of Appeals noted that the substance of this conversation was
in dispute.

record of these conversations as was required of them by the
government.’

The failure on the part of the government to perform its duty
to preserve these two conversations deprived petitioner of
, exculpatory evidence, thus denying him a fair trial.

REASONS FOR GRANTING THE WRIT

The Due Process Clause requires the government to preserve

all evidence gathered during the course of an investigation, be
it incriminating or exculpatory.

This case presents a unique opportunity to settle the law of
the land with regard to the duties of prosecuting authorities to

3. These failures were in direct violation of the FBI procedures adopted
to comply with the requirements laid down in United States v. Bryant, infra, i.e.:

“*. . , information not in a signed statement received from
a witness, and concerning which the witness may
testify . . . should be reported on form FD 302. Statements
of witnesses in any way favorable to the defense must be
reported on Form FD 202 just as are those of witnesses for
the prosecution.

FBI Manual of Administrative Procedures and Operations,
Secs. 10-13(1), (2).

This is not a ‘‘mere violation of agency regulations.”’ Op. p. 45, fn. 137. In.

Bryant, the court wrote:

“Our approach is in keeping with an incipient but powerful
trend in the law — a new refusal to rely blindly upon the
unstructured exercise of official discretion and a new judicial
willingness to require promulgation of and obedience to rules
by administrative agencies."’

6

preserve all evidence they gather during the course of a criminal
investigation including that which may be exculpatory.

As in many similar covert criminal investigations, in this case
the government set out, secretly, to gather evidence for purposes
of future criminal prosecution.

The bulk of the evidence gathered by the government consisted
of conversations which it preserved on tape recordings. The failure
by the government to preserve the two exculpatory telephone
conversations of December 21, 1979 in the same manner or in
any other documentary form effectively deprived the petitioner
of a fair trial.

In Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83
S. Ct. 1194 (1963) this Court held that ‘‘suppression by the
prosecution of evidence favorable to an accused . . . violates due
process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution.’’ (373 U.S. at p. 87).

In a subsequent decision, the United States Court of Appeals
for the District of Columbia Circuit followed the rationale of
the Brady decision and decided that due process requires
investigating authorities to impartially preserve all of the evidence
they discover be it incriminating or exculpatory. United States
v. Bryant, 439 F. 2d 642 (D.C. Cir. 1971).

In Bryant, the Circuit Court held:
**. . . sanction for nondisclosure based on loss of

evidence will be invoked in the future unless the
government can show that it has promulgated,

enforced and atterapted in good faith to follow
rigorous procedures designed to preserve all
evidence gathered in the course of a criminal
investigation. The burden, of course, is on the ™
government to make this showing. Negligent failure
to comply with the required procedures will provide
no excuse. 459 F. 2d at 652.”’

Bryant has been cited by courts throughout the land. As a
part of the appendix to this petition, we have annexed a printout
from ‘‘Lexis’’ showing the numerous cases referring to Bryant.
Despite the demonstrated importance of the Bryant decision, this
Court has not yet spoken upon the important constitutional issue
of the due process duty of the government to preserve all of the
evidence it gathers in a criminal investigation.

We believe this Court should now rule on this important
constitutionai point and this case is a unique vehicle for a definitive
determination of this important issue.

In its opinion, below, the D.C. Circuit Court has effectively
emasculated the substance of Bryant by raising a spurious
distinction between ‘‘preservation’’ of evidence and ‘‘creation’’
of evidence. On page 47a of the slip opinion, the Court of Appeals
below attempted to distinguish this case from Bryant, stating:

*‘Nothing in Bryant suggests that the FBI was
obligated to create documentary evidence of its
conversations with Weisz.’’ (Emphasis in original.)

The court below erred. Clearly, the government ‘‘created’’
incriminating evidence by tape recording conversations with the
defendants. To assert, on the other hand, that the government
need not create documentary evidence of exculpatory conversations
when it creates documentary evidence of incriminating

conversations is a palpable violation of due process. Butler and
Bryant require the preservation of all evidence gathered in a
criminal investigation, whether incriminating or exculpatory.

The constitutional mandate for preservation of evidence
described in Bryant when contrasted with the ruling of the court
below raises an important question and its potential widespread
effect is illustrated by the volume of cases and articles citing
Bryant.

Destruction of exculpatory evidence by the government’s
failure to reduce it to discoverable form is harmful to an accused
regardless of whether such destruction occurred negligently or
wilfully. In either case, the evidence is lost and the accused is
denied any beneficial effect that evidence might have on a jury.

Thus, there is no difference between destroying evidence by
failing to ‘‘create’’ it in documentary form in the first instance,
as the government claimed was donz in the case at bar, or by
first ‘‘creating’’ it in documentary form and later destroying it
as occurred in Bryant. In either case, the evidence is not available
to an accused. The distinction between ‘‘creating’’ evidence and
**preserving’’ evidence drawn below is meaningless.

The government was under a constit ‘ional duty to record
or otherwise preserve the two exculpatory cc »versations it initiated
on December 21, 1979. Any other course would bestow upon the
government the unlawful power to preserve only incriminating
evidence and to destroy evidence in any way favorable to the
defense. This is constitutionally offensive.

We believe that the Constitution requires the government to
preserve all evidence it gathers in the course of an investigation.

This is clearly established by the government’s own rules.* The
government failed to do that in this case and thereby denied
petitioner his due process right to a fair trial.

This issue is ripe for decision by the Supreme Court and this
case is the proper vehicle for that decision.

CONCLUSION

; For the reasons above stated, this petition for a writ of
certiorari should be granted and upon granting certiorari, the Court
should reverse the determination of the United States Court of
Appeals for the District of Columbia Circuit.

Respectfully submitted,
MICHAEL F. DENNIS

SAUL I. WEINSTEIN
Attorneys for Petitioner

4. See FBI Manual p. 5, supra.

APPENDIX
ORDER OF THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT FILED
NOVEMBER 10, 1983
No. 82-2123 September Term, 1983
Criminal Action No. 80-00340
UNITED STATES OF AMERICA

V.

STANLEY WEISZ
Appellant

BEFORE: Berk, Circuit Judge, MacKinnon, Senior Circuit Judge
and Fairchild*, Senior Circuit Judge, United States Court of
Appeals for the Seventh Circuit.

On consideration of the Petition for Rehearing of Appellant
Weisz, filed October 26, 1983, it is

ORDERED by the Court that the aforesaid Petition is denied.

Per Curiam
For the Court:

GEORGE A. FISHER,
Clerk

: By: Robert A. Bonner
) Chief Deputy Clerk

* Sitting by designation pursuant to Title 28 U.S.C. §294(d).

P

2a

OPINION OF THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

/ United States Court of Appeals

| FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 82-2123
UNITED STATES OF AMERICA.
Vv.
STANLEY WEISZ, APPELLANT

4 No. 32-2154
UNITED STATES OF AMERICA
V.
) EUGENE ROBERT CIUZIO

Appeals from the United States District Court
for the District of Columbia

(D.C. Criminal No. 80-00340)

Argued April 15, 1983
Decided September 13, 1983

Bills of costs must be filed within 14 days after entry of judgment. The
court looks with disfavor upon motions to file bills of costs out of time.

3a

Karl W. Pilger (appointed by the Court) and Michael
F.. Dennis for appellants.

Daniel S. Seikaly, Assistant United States Attorney,
with whom Stanley S. Harris, United States Attorney,
Michael W. Farrell, Stephen R. Spivack and Melanie G.
Dorsey, Assistant United States Attorneys, were on the
brief, for appellee.

Before: Bork, Circuit Judge, MACKINNON, Senior
Circuit Judge, and FAIRCHILD,” Senior Circuit
Judge, United States Court of Appeals for
the Seventh Circuit.

Opinion for the Court filed by Senior Circuit Judge
MACKINNON.

MACKINNON, Senior Circuit Judge: In this appeal we
are asked to review the convictions of Eugene Ciuzio and
Stanley Weisz for offenses based upon the Federal Bu-
reau of Investigation’s undercover investigation of gov-
ernment corruption commonly known as “Abscam.” Ciu-
zio, Weisz and a third individual, William Rosenberg,
arranged a meeting between United States Congressman
Richard Kelly and agents of the FBI who were posing as
representatives of two wealthy Arabs as part of the
Abscam operation. At that meeting Kelly accepted
$25,000 from one of the FBI agents and, in return, prom-
ised to use his position in Congress to assist the Arabs
to become permanent residents of the United States.
Unbeknownst to Ciuzio, Weisz and the others, the FBI
recorded the entire illicit transaction on video tape.

On the basis of this and other evidence, Ciuzio and
Weisz ' were charged with conspiracy to commit bribery,

* Sitting by designation pursuant to 28 U.S.C. § 294(d).

1 Kelly was charged in the same indictment with bribery, in
violation of 18 U.S.C. § 201(c) (1976), conspiracy to commit
bribery, and interstate travel to commit bribery. Rosenberg,
who had previously pled guilty to a charge of conspiracy to

4a

in violation of 18 U.S.C. § 371 (1976), aiding and abetting
bribery, in violation of 18 U.S.C. §2 (1976), and inter-
state travel to commit bribery, in violation of 18 U.S.C.
§ 1952 (1976). Ciuzio, Kelly and Weisz were initially
tried together and a jury found each guilty on all counts.
However, the district court granted Ciuzio and Weisz a
new trial because of “the disparity in the amount of evi-
dence as it related to Kelly on the one hand and...
Weisz and Ciuzio on the other, and in light of .. . the
manner in which [Kelly’s defense] was put forth... .”
United States v. Kelly, 539 F. Supp. 363, 377-78 (D.D.C.
1982) (footnote omitted).? A second jury trial again
found Ciuzio and Weisz guilty on all counts.

On appeal, Ciuzio and Weisz contend that the district
court erred in admitting certain evidence offered by the
government and in denying their motions for judgment
of acquittal on the grounds of insufficient evidence. Ciu-
zio also contends that he was denied his constitutional
right to represent himself and that the FBI’s conduct in
furtherance of Abscam was so outrageous that principles
of due process required dismissal of the indictment. For
the reasons set forth below, we find these contentions to
_ be without merit and affirm the judgments entered by

the district court.

commit bribery, was named as an unindicted co-conspirator.
See United States v. Kelly, 539 F. Supp. 363, 367 n.14 (D.D.C.
1982).

? The district court granted Kelly’s motion to dismiss the
indictment because it concluded that the FBI’s actions in fur-

v. Kelly, supra, 539 F. Supp. at 370-77. This Court reversed

of the jury” with respect to Kelly. United States v. Kelly,

707 F.2d 1460, 1461 (D.C. Cir. 1983) (per curiam).

fol
_ @

Sa

I. Facts
A. The Abscam Investigation

In the spring of 1978, the FBI began an undercover
investigation in an attempt to recover stolen art and
securities and to catch individuals dealing in such items.’
The name given to this investigation was “Abscam,” 2
name derived from Abdul Enterprises, a fictitious, FBI-
created organization which ostensibly represented two
Arabs of considerable wealth interested in financing busi-
ness ventures in the United States. Convicted confidence
man Melvin Weinberg was enlisted by the FBI to assist
in the operation of Abscam and to give the investigation
credibility with criminal elements.* Weinberg and a num-
ber of FBI agents “held” various positions in Abdul En-
terprises. Beginning in January 1979, FBI special agent

* Trial Transcript (Tr.) at 635, 1060.

* Tr. at 635-36, 724-R.

* Tr. at 637-38, 724-P, 724-V to -W, 804-05, 952, 1052. Prior
to 1977, Weinberg operated an illegitimate business known

typically misrepresented the chances of obtaining such financ-
ing and, with rare exception, simply absconded with the fees.
Tr. at 1057-59.

In 1977, as a result of his London Investors activities, Wein-
berg pled guilty to fraud charges in the United States District
Court for the Western District of Pennsylvania. Tr. at 1052-
53, 1059-60. In exchange for his cooperation in four on-going
investigations, 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

. at

6a

Anthony Amoroso assumed the role of president of Abdul
Enterprises.*

In the latter part of 1978 Abdul Enterprises was ap-
proached by two businessmen, William Rosenberg and
William Eden, concerning the possibility of financing
certain equipment to be leased to the City of Camden,
New Jersey. To further that transaction, Eden and
Rosenberg introduced the representatives of Abdul Enter-
prises to Angelo Errichetti, then Mayor of Camden.
When it became apparent to the Abscam operatives that
Errichetti was corrupt, the focus of Abscam shifted to
the investigation of political corruption and infiltration
of legitimate business by organized crime.’

On July 26, 1979, Errichetti met with Weinberg and
Amoroso on Abdul Enterprises’ yacht in Florida. During
the day Amoroso told Errichetti that the wealthy Arabs
who controlled Abdul Enterprises were concerned that
they might encounter problems if they sought to come to
the United States as permanent residents, and indicated
that the Arabs wanted “assurances” from public officials
that they would be able to remain in the United States.
Errichetti responded that he could obtain such assurances,
“if [Abdul Enterprises] had the money.” * Thereafter, on
August 22, 1979, Errichetti introduced the Abscam opera-
tives to United States Congressman Michael Myers who

* Tr. at 635-36, 724-Z to -BB.

™Tr. at 639-40. See United States v. Kelly, 707 F.2d 1460,
1462 (D.C. Cir. 1983) (opinion of MacKinnon, J.). Errichetti
ultimately led Abscam to a number of other corrupt public
Officials. See United States v. Myers, 692 F.2d -823 (2d Cir.
1982), cert. denied, 103 S. Ct. 2488 (1983); United States v.
Jannotti, 673 F.2d 578 (3d Cir.) (en banc), cert. denied, 457
U.S. 1106 (1982). In March 1979 Abscam uncovered cor-
ruption in the Immigration and Naturalization Service. See
United States v. Alexandro, 675 F.2d 34 (2d Cir.), cert. de-
nied, 108 S. Ct. 78 (1982).

* Tr. at 639-40.

7a

accepted $50,000 in exchange for his promise to assist the
wealthy Arabs. Thus was introduced the “asylum sce-
nario”—whereby several members of Congress were paid
bribes to ensure that they would introduce private immi-
gration legislation on behalf of the wealthy Arabs if and
when necessary—which ultimately led to the convictions
of Ciuzio and Weisz at issue here.

B. Abscam as it Involved Ciuzio and Weisz

1. Abscam’s Introduction to Kelly

In the early part of September 1979, Amoroso sought
Rosenberg’s aid in obtaining political assistance for his
Arab employers. Amoroso told Rosenberg that he was
interested in meeting congressmen willing to introduce
legislation which would give the Arabs permanent resi-
dent status and that the congressmen, as well as the indi-
viduals recruiting the congressmen, would be paid for
their assistance.” In October 1979 Rosenberg related the
proposal to his business associate, accountant Stanley
Weisz." Rosenberg told Weisz that the Arabs were con-

* United States v. Myers, 527 F. Supp. 1206, 1212 (E.D.N.Y.
1981), aff'd, 692 F.2d 823 (2d Cir. 1982), cert. denied, 103
S. Ct. 2438 (1983).

© Tr. at 641-42.

“ Tr, at 817, 1073, 1105-06, 1221-22. Weisz first met Rosen-
berg in 1965 when Rosenberg, who at that time was a stock-
broker, performed a “due diligence” study of one of Weisz’
corporate clients. Rosenberg then “dropped out of sight” and
had no further dealings with Weisz until 1978. At that time
Weisz ran into Rosenberg and learned that Rosenberg had
served time in jail for stock fraud and was seeking em-
ployment. Weisz attempted to assist Rosenberg in his job
search. Tr. at 1101-05. In 1979, Rosenberg told Weisz that
he was “working with Arab representatives on a number of
projects” and, in September 1979, introduced Weisz to Amoroso
and Weinberg. Tr. at 1105-06, 1221. Amoroso and Weinberg
did not discuss the asylum scenario with Weisz at that time.

=*2 (a

8a

cerned that they might have problems staying in the
United States and wanted to meet congressmen who would
introduce favorable legislation. Rosenberg suggested that
Weisz would receive a fee for the proper introductions.”
Weisz responded that he did not know any congressmen."*

On November 20, 1979, Weisz, while on vacation in
Boynton Beach, Florida, met with his longtime business
associate, Eugene Ciuzio.* During their conversation,
Weisz related the wealthy Arabs’ need to “make friends”
with congressmen, explaining that “they were bringing a
lot of money to [the United States] for investment” and
were worried that “they might have difficulty staying in
this country.” Ciuzio replied that he was working with
a. Congressman who might be willing to help the Arabs
and indicated that he would check with the Congressman
and get back to Weisz. For his part, Weisz agreed to con-
tact Rosenberg and, if the Arabs were still interested,
have Rosenberg call Ciuzio.“ A few days later Ciuzio

“Tr. at 817, 1073, 1106, 1221-22. Weisz testified that
Rosenberg did not mention that the congressmen would re-

’ ¢ceive.a fee for their assistance. Tr. at 1222.

4 Tr. at 817, 1106.

% Tr. at 817, 1073-74, 1108-10, 1115, 1232. Ciuzio had re-
ferred a friend to Weisz for assistance in a federal tax matter.
The purpose of the meeting was to provide Weisz with the de-
tails of that dispute. Tr. at 1111-17, 1122-27.

Weisz first met Ciuzio in 1960 when Ciuzio was involved in
providing trucking services for a number of Weisz’ clients in
New York. Thereafter Weisz performed accounting work
for Ciuzio for a number of years. When Ciuzio moved from
New York to Florida, Weisz continued to advise Ciuzio on
various financial transactions. In return, Ciuzio referred
individuals in need of an accountant to Weisz. Tr. at 1108-11.

“ Tr. at 1127, 1232-33, 1258.

*Tr. at 1128-30, 1233, 1259. Weisz testified that Ciuzio
gave no indication that the Congressman was corrupt. Tr.
at 1233.

9a

called Weisz in Boynton Beach and told him that the Con-
gressman was interested in helping the Arabs."

In mid-December 1979 Rosenberg stopped by Weisz’
office and again mentioned his work for the wealthy
Arabs. Weisz informed Rosenberg of Ciuzio’s friendship
with a Florida Congressman who was willing to help the
Arabs with their immigration troubles if they were still
interested."* Rosenberg checked with Amoroso and Wein-
berg, and then called Weisz and told him that the Arabs’
representatives “were very interested” in meeting the
Congressman. Rosenberg indicated to Weisz that the
Arabs would pay $250,000 for such an introduction and
that he wanted $50,000 of that sum.” Weisz gave Rosen-
berg Ciuzio’s telephone number, and agreed to call Ciuzio
and ask him to call Weinberg. Weisz called Ciuzio and
told him of the Arabs’ continued interest in meeting con-
gressmen and of the $250,000 fee, and to expect a call
from Weinberg. Ciuzio and Weisz agreed that Weisz, like
Rosenberg, would receive $50,000.% Meanwhile, Rosen-
berg called Weinberg and gave him Ciuzio’s name and
telephone number, explaining that Ciuzio was “the con-
nection to the Congressman” and that Weinberg would
have to “deal through” Ciuzio.™

As a result of these efforts, Amoroso and Weinberg met
with Ciuzio on December 19, 1979, in Hollywood, Florida,

7 Tr. at 1129, 1258-59. Weisz could not recall if Ciuzio had
told him the Congressman’s name during this conversation,
but opined that Ciuzio “probably did mention the [C]ongress-
man’s name.” Tr. at 1129.

® Tr. at 1131-32, 1259.
%* Tr. at 1133-35, 1260, 1262.

* Tr. at 1135-37, 1233-34, 1237, 1260-63, 1266. Weisz testi-
fied that he expected the balance of the $250,000 fee to go to
Ciuzio; it never occurred to Weisz that some of the fee might
go to the Congressman. Tr. at 1261-62, 1265.

Tr. at 642-43.

10a

to discuss the transaction. Amoroso explained the assist-
ance that would be expected of the Congressman:

These [Arabs] are smart enough, they’re investing
their money all over the world .... They figure at
some point in time they’re gonna have to... get
outa there .... Now where is the best place to come
and live but this country? . . . So what they’re doin
is they’re startin’ to put themselves in a position so
that when... they come here .. . we [can] call the
Congressman and say, hey look, the [Arabs are] here
[and] . .. we want ya to introduce the legislation
now to keep em here.*

Weinberg indicated that the Arabs were willing to pay a
total of $250,000, with $100,000 going to the Congress-
man, for the Congressman’s assistance. He suggested that
the Congressman be paid $25,000 at an initial meeting,
with the balance paid when legislation was required.”
Weinberg made it clear that the meeting and payment of
$25,000 was to assure the Arabs that the Congressman

got the money [and] when we're ready to move that
he is gonna be with us.**

Ciuzio told Amoroso and Weinberg that the individual
was Congressman Richard Kelly and intimated that he
and Kelly had had previous dealings of a similar nature.*
Ciuzio indicated that he understood the nature of the pro-

* Transcript of Meeting of Dec. 19, 1979, at 28. See id. at
11, 14, 22, 28-29.

3 Id. at 17-19, 22, 28-29.

* Id. at 33.

3 Id. at 12, 16-17, 31-32, 38-39. Referring to Kelly, Ciuzio

Not that I'll ever use it on [him], of course, but I’m just
sayin 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 that’s all.

Id. at 39 (emphasis added).

lla

posal,* revealing that Weisz had outlined it for him over
lunch in Florida:

I met Stanley [Weisz] at Boy[n]ton Beach.... We
had lunch at Bernard’s. He says hey ya know a
Congressman? Yeah. [He says] I got a.. . Sheik
... [with] 30 billion... . He says, they gotta get
’em in [the] country. I said unless he’s a f---in
fugitive... I guess it can be done. He says ya really
got a Congressman? I says we’re engaged, ya know
what I mean? We're that f--- in tight.”

Ciuzio also indicated that in a later conversation Weisz
had given him the $250,000 figure and that they had ar-
rived at a split of $100,000 for Kelly because “that[’s]
what [Kelly] needs to straighten his whole life out.”*
Ciuzio claimed to have explained the proposal to Kelly and
that Kelly had left the arrangements to him.”

Jd. at 29, 33. Ciuzio had the following exchange with

Amoroso:

CIUZIO: So now what you’re saying the Congress-
man really don’t have to do nothin’... .

AMOROSO: No, not until he comes...

CIUZIO: All right.

AMOROSO: ... if he comes.

CIUZIO: Now, ... you’re sayin ya gonna give em
twenty-five thousand.

AMOROSO: Right.

CIUZIO: For doin nothin.

AMOROSO: For doin nothin.

CIUZIO: To stand by.

AMOROSO: To stand by. And if the guy comes...
we want the guarantee... . [that Kelly’s] gonna intro-
duce the legislation.

Id. at 29. Ciuzio later noted, “[t]his ain’t exactly ahh a f—in
real estate deal.” Id. at 52.

* Id. at 12. See id. at 35-37.
* Id, at 17, 35-36.
™* Id, at 16, 26, 30, 35.

12a

Noting that he was “obligated to protect [Kelly] in the
sensible way,” Ciuzio opposed a 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 Congress-
man, and that the wealthy Arabs would invest in Kelly’s
district to provide an explanation for Kelly’s assistance.*
Ciuzio agreed to “lay out the story” for Kelly, but only if
he received “clearance” from Weisz because it was “his
package.” * Amoroso and Weinberg suggested that Ciuzio
set up the meeting for January 8 or 9, 1980, at Abdul
Enterprises’ Washington, D.C., townhouse.”

On December 20, 1979, Weinberg called Ciuzio and in-
quired if Ciuzio had spoken with Weisz about the deal.
Ciuzio said that he had not, but that he had talked to
Kelly. Kelly had called him from his congressional office
and Ciuzio asked Kelly to call back from a “public phone
booth” to discuss the transaction.* On December 21,
1979, Ciuzio called Weinberg and indicated that he had
spoken to Kelly and “told him to stand by.” Ciuzio said
that Kelly was available for a January 8 meeting in
Washington.*

Ciuzio also told Weinberg that he had discussed the
deal with Weisz and reiterated that he and Weisz did not

%° Id. at 16, 18-19, 25, 27, 35-37.
*1 Jd. at 18-19, 22, 29-30, 34-35.

3 Jd. at 23-24, 33-34, 36, 52-53. Ciuzio told Amoroso and
Weinberg:
If ... Stanley [Weisz] agrees to it. I don’t mind telling
ya... [t]his to me is his package. He’s bringing it.
He’s the vehicle.

Id. at 23.
Id. at 17, 40.

* Transcript of Telephone Call of Dec. 20, 1979, at 1-2, 8,
10.

*% Transcript of Telephone Call of Dec. 21, 1979, at 3.

l3a

like the idea of the money being paid directly to the Con-
gressman. Ciuzio again suggested that Weisz handle “all
the money.” Weinberg insisted that Kelly be directly
involved in the transaction, but indicated that

{a]ll he [Amoroso] wants the Congressman [to do]
is to tell him what he’s gonna do for him for the
money.”

“(A]fter that,” Weinberg asserted, “I don’t give a damn
who comes and picks money up or what you do with it.” ™
Ciuzio agreed, but requested that they use “the right
script, nice and soft.” *

Id. at 1-2, 8-10. Ciuzio was also concerned that Kelly not
be told that Ciuzio, Rosenberg and Weisz would receive
$150,000 in the deal; Weinberg assured Ciuzio that Amoroso
would not mention their shares to Kelly. Id. at 11-14.

Id. at 13. See id. at 7, 14. Weinberg told Ciuzio that
“(t]hat’s the only way we'll do it... .” Id. at 2.

8 Id. at 4.

* Id. at 13. See id. at 18. Ciuzio also requested that Wein-
berg call Weisz and discuss the deal with him. 7/d. at 1, 3, 17,
19. Weinberg called Weisz immediately, but the substance of
their conversation was in dispute at trial. Weinberg did not
record the call, purportedly because someone unaware of the
Abscam investigation entered the room where he was making
the call. Tr. at 984-85, 992, 1139, 1268. Weinberg testified that
Weisz told him that “whatever way Gino [Ciuzio] wants to
handle it is all right with me... .” Tr. at 992-93, 996-97.

Weisz, on the other hand, testified that Ciuzio called him
prior to Weinberg’s call and indicated that he did not believe
the Arabs’ representatives would pay the $250,000. Ciuzio
asked Weisz to support his demand that the $250,000 be
placed in escrow. Tr. at 1138-39, 1267-68. When Weinberg
called, Weisz claimed to have insisted that the Arabs’ deposit
the $250,000 in an escrow account with a Florida attorney.
When Weinberg refused to agree to do so and asserted the deal
was off, Weisz testified that he replied, “So be it.” Tr. at 1139-
40, 1268-69. Weisz stated that Rosenberg called him a few
days later and told him that Kelly was going to meet Amoroso
and Weinberg on January 8, 1980, in Washington, D.C., and

I4a

On January 8, 1980, Weisz and Rosenberg flew to
gether from Long Island, New York, to National Airport
in Washington, D.C., where they were met by Ciuzio, who
had arrived from Orlando, Florida, earlier in the day.
The three of them checked into the Twin Bridges Mar-
riott and then went to the Madison Hotel where they were
to meet Kelly for dinner. Kelly was delayed, however,
and arrived only after they had finished dinner. After a
brief conversation over coffee, Rosenberg called Weinberg,
who sent Abdul Enterprises’ limousine to bring the four
men to the Georgetown townhouse.”

2. Abscam’s Payoff to Kelly

Shortly after 10:00 p.m. on January 8, 1980, Ciuzio,
Kelly, Rosenberg, and Weisz arrived at Abdul Enter-
prises’ townhouse to meet with Amoroso and Weinberg.
Initially Weinberg met with Ciuzio, who vigorously
sought to dissuade Amoroso and Weinberg from attempt-
ing to bribe Kelly directly.“ The two ultimately agreed

that Ciuzio was going to receive $25,000 at the meeting for
the introduction. Tr. at 1156-57, 1274. According to Weisz,
Ciuzio subsequently verified Rosenberg’s statement, adding
only that the balance of the $250,000 would be paid in a few
weeks. Tr. at 1157, 1274-75.

“Tr. at 860-61, 1015-17, 1161-68. According to Weisz’
testimony, he traveled to Washington because Ciuzio told him
that Kelly needed an accountant and suggested that Weisz
meet Kelly to discuss his becoming one of Weisz’ clients. Tr.
at 1158-60, 1276-77. Weisz admitted, however, that he never
spoke to Kelly regarding the possibility of Kelly becoming a
client. Tr. at 1277.

“1 Transcript of Meeting of Jan. 8, 1980, at 1-11. Ciuzio
said, “Don’t hand him no f—ing money, don’t talk money, tell
him what the problem is ....” Jd, at 3. Later Ciuzio and
Weinberg had the following exchange:

WEINBERG: Well, he knows he’s getting money

right?
[Continued]

1Sa

that Kelly would acknowledge that the money was in ex-
change 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 f---ing thing...

WEINBERG: Let him [Amoroso], 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 an-
swers too.

WEINBERG: All right, so...

CIUZIO: I rehearsed with him.*

After this conversation Kelly and Amoroso met pri-
vately. Amoroso explained the Arabs’ immigration diffi-
culties and 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 pro-
tect them from pressure.“ Kelly’s response revealed that
he was already aware of the purpose for the investments:

* [Continued]

CIUZIO: Heain’t taking no f—ing money in his hand.
WEINBERG: All right, you'll takeit...

CIUZIO: All right.

WEINBERG: he'll hand it to you.

Id, at 4.

@ Id. at 10. Of similar import is the following:

WEINBERG: Let Tony [Amoroso] hand you the
money in front of him. Long as we know he’s getting

money.

CIUZIO: That’s ok. But... [{y]Ja can’t make him a
f—ing hood, ya know.

WEINBERG: No. but he’s gotta know that he’s
getting paid to doit....

Id. at 3-4. See note 41 supra.
** Transcript of Meeting of Jan. 8, 1980, at 11-13.

16a

AMOROSO: Now I realize that ahh there’s a
possibility that ahh if, if you were to introduce
somethin like this, that ahh, people would ask, well
why is he doing it, ya know, well what’s the rea-
son, now... /

KELLY: I’ve got the reason.

AMOROSO: Ok, what... would that be...
investing?

KELLY: Sure.“

Kelly agreed to assist the Arabs, and indicated that
Amoroso’s arrangement with Ciuzio was fine:

All of this stuff that you’ve been talking about...
I don’t know anything about that, I’m not involved
with it .... Gino [Ciuzio] and these guys are my
friend(s] . . . what you said makes a lot of sense to
me... I’m gonna stick 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. .. . So this . . . will be
helpful to me and .. . maybe. . . down the road
sometime, you can do me a favor. But in the mean-
time, whatever these guys are doing is all right, but
I got no part in that... . [I]n 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... I will...
stick by these people.“

After Amoroso received a call from Assistant United
States Attorney Jacobs who was monitoring the meeting,
Kelly asked to talk to Ciuzio. Ciuzio talked to Kelly pri-
vately for approximately ten minutes and, when Ciuzio
emerged, he told Amoroso that Kelly would do what the
Arabs wanted, but that Amoroso should not give Kelly
any money.“

“Id. at 12-13. After Kelly inquired about the types of in-
vestments the Arabs wanted to make, he stated, “I’ve got the
place.” Id. at 14-15.

“ Id. at 16 (emphasis added).
“ Id. at 18, 21. Tr. at 650-52, 661-62, 679-80, 691-92, 740-41.

17a

As Amoroso and Kelly resumed their discussion,
Amoroso sought to clarify Kelly’s position. Kelly made it
clear that he wanted the money given to Ciuzio:

KELLY: [Y]ou and 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. Well I was under the impres-
sion . . . 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 introduee 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 $25,000
was intended to go to Kelly, and that Ciuzio and the
others would be separately compensated, Kelly was con-
fused:

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 con-
cerned, he takes that. ... [B]ut I see I didn’t know
. . about this other arrangement... . It’s... all

* Transcript of Meeting of Jan. 8, 1980, at 22-23.

eee

18a

right but I didn’t know about that. So let’s talk
about it some.
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 secu-
rity ... 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.*

Amoroso and Kelly then joined the others in the living
room of the townhouse. As Ciuzio and the others were
preparing to leave, he asked Amoroso who had the money.
Amoroso replied, “He has it,” and pointed to Kelly, who
at that time was leaving the townhouse. Ciuzio responded
that if Amoroso was satisfied, he was satisfied, and left.
Ciuzio, Kelly, Rosenberg and Weisz were then driven back
to the Madison Hotel, where Kelly had left his car, and
then to the Marriott, where Ciuzio, Rosenberg and Weisz
were staying.”

* Id. at 24-26.
@ Id. at 26-27.
% Id. at 28-30.

" Tr. at 662-64, 707-10, 780-81. Weisz disputed this version
of the events, testifying that he heard Ciuzio ask Amoroso,
“Where's my money, where’s my money?” Tr. at 1173-74.
Weisz further testified that Ciuzio later asked him if he had
the $25,000, to which he responded, “No” Tr. at 1175-76, 1280-
81. On the other hand, Weinberg testified that Ciuzio, Rosen-
berg and Weisz each asked him if Kelly had been paid. Tr. at
958-60. Ciuzio did not testify at trial.

= Tr. at 664, 1019-21, 1176-79. Weisz indicated that after
the limousine dropped them at the Marriott, Ciuzio asked

~~ Cg". ee st" a i ee

19a

3. Abscam’s Payoff to Weisz

On January 31, 1980, Rosenberg called Weisz and told
him that Amoroso and Weinberg were in town and ready
to pay them the balance of the $250,000. Rosenberg asked
Weisz to call Weinberg because he wanted to know how
the money should be split; according to Weisz, Rosenberg
said that

the split should be fifty for ... Rosenberg, fifty for
... [Weisz], fifty for . . . Ciuzio, and seventy-five
for Ciuzio to give to Kelly."
Weisz called Weinberg the next day and told him that the
balance of the $250,000 should be split “fifty, fifty, fifty,
seventy-five.” “* Weisz made it clear that Ciuzio should be
given Kelly’s share for delivery:

WEINBERG: Hey now who, well who gets...
Kelly’s?

WEISZ: Let Gino [Ciuzio] take care of it.

WEINBERG: You want Gino to take care 0’
that?

WEISZ: Absolutely.

WEINBERG: ([SlJend a hundred and... twenty-
five to Gino then.

WEISZ: Right.

WEINBERG: And he'll take care o’ Kelly.

WEISZ: That’s the best way.

Rosenberg if he had the money, to which Rosenberg replied,

' “No.” Ciuzio then purportedly said:

(T]hey didn’t give me the money; Stan [Weisz], you
haven’t got the money; they surely didn’t give any money
to the Congressman; Rosenberg, you haven’t got the
money ; I’ve been ripped off.

Tr. at 1179-80.
Tr. at 1183-85 (emphasis added).
* Transcript of Telephone Call of Feb. 1, 1980, at 1-2.
* Id. at 2-3.

20a

Weisz agreed to meet Amoroso and Weinberg the next
day to pick up his share of the money.

On February 2, 1980, Weisz, accompanied by Rosen-
berg, drove to the Hilton Hotel at New York’s Kennedy
Airport to meet with Amoroso and Weinberg.*’ Amoroso
told Weisz that the wealthy Arabs were pleased with the
Kelly transaction and, indicating that they “need[ed] a
few ({more] of these guys in our corner,” asked Weisz if
he had “anybody else in mind at this particular time?” *
Weisz was agreeable to bringing additional people to the
Abscam operatives:

WEISZ: There’s other ones, yes.

AMOROSO: All right. How about the same ar-
rangement?

WEISZ: I don’t see why not.

AMOROSO: Okay.

WEISZ: Seems satisfactory.

WEISZ: If you wanna do exactly the same thing,
I'll get you somebody else to do exactly the same
thing.”
Weisz asked Weinberg to call Ciuzio and was surprised,
but unconcerned, that Amoroso intended to deliver Kelly’s
$75,000 personally :
AMOROSO: I got fifty for you, fifty for Bill
[Rosenberg], and then we got fifty for Gino [Ciuzio].
WEISZ: And you’re gonna... deal direct with
... Kelly?
AMOROSO: Yeah.
WEISZ: Ok...I see... . As long as he agrees
... (t]hat’s perfectly okay. I couldn’t care one way
or the other.”

* Id. at 3-4. Tr. at 1186.

* Transcript of Meeting of Feb. 2, 1980, at 1,6. Tr. at 1186.
* Transcript of Meeting of Feb. 2, 1980, at 2, 5.

% Id. at 2, 5.

@ Id. at 6-7.

2la

At that point, Weisz received $50,000 and placed it in
an attache case he had brought for that purpose.”

As Weisz left the meeting, he was met by two FBI
special agents, Daniel Melore and Raymond Raleigh.
Weisz accompanied the two agents to another room and
answered their questions for about twenty minutes.
Weisz related how he had participated with Ciuzio and
Rosenberg in arranging Kelly’s introduction to Amoroso
and Weinberg, and stated that

he knew full well that he was instrumental in bring-
ing people together to be corrupted.@

Thereafter Weisz called his attorney and, after he ar-
rived, the agents retrieved the $50,000 from Weisz’s at-
tache case and allowed Weisz to leave.®

II. SELF-REPRESENTATION ISSUE

At the outset we are met by Ciuzio’s contention that
he was denied his constitutional right to dispense with
the services of counsel and represent himself at his sec-
' ond trial. This contention is based upon the district
court’s denial of a motion, filed by Ciuzio acting pro se,
in which Ciuzio requested, inter alia, that the district
court

enter its Order allowing the defendant, CIUZIO, to
represent himself with assigned counsel, or in the
alternative, Stand-by Counsel other than KARL
PILGER.“

“ Id. Tr. at 807, 822, 1190.

@ Tr. at 807-09, 817-18; 823, 827, 830-32, 1069-70, 1072-74,
1190-92. Of course, at trial Weisz denied making the incrimi-
nating statement. Tr. at 1191, 1255.

“Tr. at 819-20, 832, 1074-A, 1076, 1194-95, 1198-200,
1332-40.

“ Motion to Set Aside Order Allowing Assigned Counsel;
Motion for Order Allowing Defendant, Ciuzio, to Have Coun-

22a

Ciuzio asserts that the emphasized language “unequiv-
ocally” notified the district court that he wished to pro-
ceed pro se. Accordingly, since the district court inter-
preted Ciuzio’s motion as a request to substitute an at-
torney of his own choice for Karl Pilger as appointed
counsel, rather than as a request to proceed pro se, Ciuzio
argues that the district court denied him the constitu-
tional right of self-representation established by the Su-
preme Court in Faretta v. California, 422 U.S. 806
(1975) .*

We cannot agree with Ciuzio’s assertion that his motion
“unequivocally” requested that he be permitted to repre-
sent himself. Rather, considering the motion as a whole,
as well as the contemporaneously filed motion for substi-
tution of counsel, submitted on behalf of Ciuzio by Karl
Pilger,” and the record of Ciuzio’s exercise of the right
of self-representation at his first trial, we conclude that
the district court properly interpreted Ciuzio’s motion as
one for the substitution of alternative appointed counsel.
Since at no point prior to his second trial did Ciuzio
“articulately and unmistakably” assert his right to self-

sel of His Own Choice 7 4, United States v. Ciuzio & Weisz,
No. 80-00840 (D.D.C. filed June 24, 1982) (emphasis added),
Record Item (RI) 308 [hereinafter cited as Ciuzio Motion].
Kari Pilger, who acted as standby counsel for Ciuzio at his
first trial, was appointed by the district court on June 11, 1982,
to represent Ciuzio at his second trial. Status Call Transcript
(Status Call Tr.) at 2-8. See Criminal Justice Act Appoint-
ment of Karl Pilger as Counsel for Eugene Ciuzio, United
States v. Ciuzio & Weisz, No. 80-00340 (D.D.C. June 15, 1982),
RI 306.

* Brief for Defendant Ciuzio at 16-17. See Order Denying
Motion for Substitution of Counsel, United States v. Ciuzio &
Weisz, No. 80-00340 (D.D.C. June 24, 1982), RI 309.

* Motion of Defendant Eugene R. Ciuzio for Substitution
of Counsel, United States v. Ciuzio & Weisz, No. 80-00340
(D.D.C. filed June 21, 1982), RI 307 [hereinafter cited as
Substitution Motion].

ao

23a

representation, United States v. Bailey, 675 F.2d 1292,
1300 (D.C. Cir.), cert. denied, 103 S. Ct. 119 (1982), we
find no constitutional error on the part of the district
court.”

A. The Right of Self-Representation

While it is well established that defendants in criminal
actions may, under certain circumstances, waive their
Sixth Amendment right to the assistance of counsel, the
Supreme Court has only recently held that the Sixth
Amendment provides defendants with the right to dis-
pense with the services of counsel and represent them-
selves at trial.” Faretta v. California, supra, 422 U.S.
at 818-21, 835-36. The Court found that a right of self-
representation was implied by the language and history
of the Sixth Amendment:

* Ciuzio does not challenge the propriety of the district
court’s denial of his motion to replace Kari Pilger with ap-
pointed counsel of his own choice. See Order Denying Motion
for Substitution of Counsel, United States v. Ciuzio & Weisz,
No. 80-00340 (D.D.C. June 24, 1982), RI 309.

* See, ¢.g., Johnson v. Zerbst, 304 U.S. 458, 464 (1988)
(waiver of right to assistance of counsel must be “an inten-
tional relinquishment or abandonment of a known right or

privilege”) .

® Prior to Faretta, however, the Supreme Court had sug-
gested that a right of self-representation was to be found in
the Sixth Amendment. See Adams v. United States ez rel.
McCann, 317 U.S. 269, 279 (1942) (in analysis of require-
ments for adequate waiver of Sixth Amendment right to coun-
sel, Court refers to “the correlative right to dispense with a
lawyer’s help”). Furthermore, statutory protection of the
right of self-representation in the federal courts predates the
Sixth Amendment. See Judiciary Act of 1789, § 35, 1 Stat. 73,
oe eneg codified at 28 U.S.C. § 1654 (1976)). Similarly,
states have long provided defendants with the right to
represent themséives in criminal cases. Faretta v. California,
supra, 422 U.S. at 813-14 & nn. 9-11.

24a

The Framers selected in the Sixth Amendment a
form of words that necessarily implies the right of
self-representation. That conclusion is supported by
centuries of consistent history.

Id. at 882. See id. at 818-19, 821. The Court recognized,
however, that defendants’ exercise of the newly defined
constitutional right to proceed pro se would necessarily
involve an abandonment of the explicit Sixth Amendment
right to the assistance of counsel. Accordingly, the Court
indicated that defendants should be permitted to exercise
their right to represent themselves only if they execute
a valid waiver of their right to the assistance of counsel;
i.e, only if they “ ‘knowingly and intelligently’ forgo
[the] relinquished benefits” of counsel. Jd. at 835 (citing
Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938) ).

Because the exercise of the right of self-representation
necessarily involves a waiver of the preeminent right to
the assistance of counsel,” the stringent limitations es-
tablished by the Supreme Court for waiver of the right
to counsel necessarily define the requirements for exer-
cise of the right of self-representation. Thus the Court’s
decisions establish that the mere failure of a defendant
to request counsel will not result in a waiver of the right
to counsel. Brewer v. Williams, 430 U.S. 387, 404
(1977). Since a defendant must act affirmatively to re-
linquish the right to counsel, it follows that the right of
self-representation is waived if not asserted; for only if
the defendant asserts the right to proceed pro se will it
be possible for a court to find the requisite waiver of
the right to counsel. Brown v. Wainwright, 665 F.2d
607, 610-11 (5th Cir. 1982) (en banc) ; United States v.
Bennett, 539 F.2d 45, 50 (10th Cir.), cert. denied, 429
U.S. 925 (1976).

Similarly, because the Supreme Court has enjoined
courts to “indulge in every reasonable presumption

® Faretta v. California, supra, 422 U.S. at 832, 835; Brown
v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982) (en banc).

25a

against waiver” of the right to counsel, Brewer v. Wil-
liams, supra, 430 U.S. at 404, a defendant must “articu-
lately and unmistakably assert[] his desire to avail him-
self of the constitutional right to self-representation ... .”
United States v. Bailey, supra, 675 F.2d at 1300 (em-
phasis added). Given the strong presumption against
waiver of the right to counsel, such a stringent standard
for judging the adequacy of an assertion of the right of
self-representation, involving as it does a waiver of the
right to counsel, is entirely appropriate.

[A] court should not quickly infer that a defendant

unskilled in the law has waived counsel and has

opted to conduct his own defense.

Brown v. Wainwright, supra, 665 F.2d at 610. So also,
a defendant who adopts equivocal positions regarding a
request to proceed pro se may properly be held to have
waived the right of self-representation. Jd. at 611; United
States v. Bennett, supra, 539 F.2d at 51.

In sum, defendants have a constitutional right derived
from the Sixth Amendment to represent themselves at a
criminal trial. However, because the exercise of that
right requires waiver of the right to assistance of coun-
sel,” the right of self-representation is waived unless de-

™ Accord Brown v. Wainright, supra, 665 F.2d at 610 (de-
mand must be “clear and knowing”); United States v. Ken-
nedy, 564 F.2d 1329, 13840 (9th Cir. 1977), cert. denied, 435
U.S. 944 (1978) (demand must be “unequivocal”); United
States v. Bennett, supra, 539 F.2d at 50 (demand must be
made “clearly and unequivocally”). Such standards find sup-
port in Faretta, where the Court, in holding that the defend-
ant had adequately asserted his right to represent himself,
stated that the defendant “clearly and unequivocally declared
... that he wanted to represent himself and did not want coun-
sel.” Faretta v. California, supra, 422 U.S. at 835.

™ Criminal defendants have no constitutional right to both
self-representation and the assistance of counsel. United States
v. Halbert, 640 F.2d 1000, 1009 (9th Cir. 1981) ; United States
v. Trapnell, 638 F.2d 1016, 1027 (7th Cir. 1980).

26a

fendants articulately and unmistakably demand to pro-
ceed pro se. Our task, therefore, is to determine whether
Ciuzio presented the district court with an “articulate
and unmistakable’ demand to represent himself at his
second trial. After a careful review of the record, we are
convinced that he did not.

B. Ciuzio’s Motion

Ciuzio contends that he presented the district court
with an unequivocal demand to represent himself at his
second trial, relying solely on the following request con-
tained in his motion filed pro se with the district court:

The defendant, CIUZIO, respectively requests that
this Court enter its Order allowing the defendant,
CIUZIO, to represent himself with assigned counsel,
or in the alternative, Stand-by Counsel other than
KARL PILGER.”

The district court treated Ciuzio’s motion as one request-
ing it to replace Kari Pilger with an alternative assigned
counsel of Ciuzio’s choosing, and denied the motion.* We

believe the district court correctly interpreted Ciuzio’s

motion as one for substitution of counsel.

The clear thrust of Ciuzio’s motion was to substitute
an attorney of his own choice, Orlando attorney Dennis
Salvagio, for the attorney appointed by the district court,
Karl Pilger. The motion averred that Ciuzio lacked con-
fidence in Pilger and recited in considerable detail the
reasons for his lack of confidence.* The motion recom-

7 Ciuzio Motion, supra note 64, J 4 (emphasis added).

™ Order Denying Motion for Substitution of Counsel, United
States v. Ciuzio & Weisz, No. 80-00840 (D.D.C. June 24, 1982),
RI 309.

™ Ciuzio Motion, supra note 64, 77 2, 3, 8, 9, 10. Ciuzio
lacked confidence in Pilger because of Pilger’s marriage to an

attorney with the Criminal Division of the Department of
Justice, and because of Pilger’s attempts to withdraw from

*

27a

mended appointment of Salvagio, indicating that he was
qualified and willing to serve as Ciuzio’s counsel, pro-
vided that the district court authorized payment of at-
torneys’ fees in excess of the maximum allowed by stat-
ute.* Asserting that the Constitution “mandates that a
defendant in a criminal case is entitled to counsel of his
own choosing,” Ciuzio, in his prayer for relief, requested
only

that this Court enter its Order Allowing the defend-
ant Assigned Counsel of his own Choice... .”

Considering the motion as a whole, it was reasonable for
the district court to interpret the language relied on by
Ciuzio as indicating that Ciuzio wished to avail himself
of the services of appointed counsel, but wished to sub-
stitute Salvagio for Pilger. Certainly Ciuzio’s request “to
represent himself with assigned counsel ... other than
KARL PILGER,”™ when made in the context of the de
scribed motion, fell far short of an unmistakable asser-
tion that he wished to dispense with the services of coun-
sel and proceed pro se.

We find additional support for the district court’s view
of Ciuzio’s motion in the record of Ciuzio’s exercise of his
right of self-representation at his first trial. Prior to
that trial, Ciuzio requested that the district court allow
him to represent himself and submitted, pro se, a memo-
randum in support of his request.” In that memorandum,
Ciuzio cited Faretta and stated correctly that

Ciuzio’s representation because of financial hardship. /d.
17 2, 3, 9, 10.

7 Id. 7 5, 6, 7. Ciuzio also sought payment of Salvagio’s
expenses for travel to and living in Washington during the
trial. Id. ¥ 6.

™ Id. 18.
78 Id. J 4 (emphasis added).

™ Transcript of Motions Hearing, Oct. 8, 1980, at 3-5;
Transcript of Motions Hearing, Oct. 23, 1980, at 2-11; Tran-

28a

[t]he right to represent oneself in conducting his
own defense in a criminal case is established . . . by
both the Sixth Amendment... as well as statute.”

Noting that he “ha[d] made an unequivocal request to
represent himself” and was aware of “the disadvantages
of proceeding to trial without counsel,” Ciuzio asserted
that the district court “must grant [his] motion to pro-
ceed pro se.” ** Concluding that, under the circumstances,
it had “no alternative,” the district court granted Ciuzio’s
request to represent himself.™

Without question, Ciuzio’s memorandum in support of
his request to proceed pro se at his first trial articulately
and unmistakably asserted his right of self-representa-
tion. Thus, when considering the motion filed by Ciuzio
prior to his second trial, the district court was necessarily
aware that Ciuzio was capable of clearly asserting his
right of self-representation if he wished to do so. That
Ciuzio’s motion made no reference to the constitutional
right of self-representation, or to Faretta, was a telling
indication that Ciuzio was not asserting his right to pro
ceed pro se.*

script of Motions Hearings, Nov. 24, 1980, at 1382-33. Memo-
randum of Law in Support of Defendant, Ciuzio’s Position to
Defend Pro Se, United States v. Kelly, Ciuzio & Weisz, No. 80-
00340 (D.D.C. filed Oct. 23, 1980), RI 222 [hereinafter cited
as Ciuzio Memorandum].

® Ciuzio Memorandum, supra note 79, at 1. Ciuzio also indi-
cated awareness of his right of self-representation in his dis-
cussions with the district court. Transcript of Motions Hear-
ing, Oct. 23, 1980, at 3-6.

™ Ciuzio Memorandum, supra note 79, at 3.
* Transcript of Motions Hearing, Nov. 24, 1980, at 132-33.

*% We do not mean to suggest that an explicit reference to the
constitutional right of self-representation or, in particular, to
Faretta, is necessary for defendants to unmistakably assert

29a

There are other compelling indications that Ciuzio’s
motion was not intended to assert his right of self-
representation. For example, although the district court
granted Ciuzio’s request to represent himself at his first
trial, Ciuzio permitted Pilger, who had been appointed
standby counsel, to conduct his entire defense.“ This
fact suggsets that at some point Ciuzio reconsidered his
decision to proceed pro se,and decided to avail himself of
the assistance of counsel, perhaps when confronted with
the realities of a complex conspiracy trial.™ Whatever
the reasons for Ciuzio’s reliance on Pilger, the district
court could properly consider his apparent abandonment
of the right of self-representation at his first trial as an
indication that Ciuzio’s motion only requested to substi-
tute appointed counsel. Likewise, the district court could

their right to proceed pro se. We simply conclude that where,
as here, a defendant has demonstrated considerable familiarity
with the right of self-representation, failure of such defendant
to explictly refer to that right in a subsequent motion justifies
the inference that the defendant is not asserting his right of
self-representation.

* Our search of the record reveals only one occasion during
the first trial when Ciuzio asserted his pro se status. Ciuzio
requested and received modification of a protective order, which
otherwise limited disclosure of certain FBI files to counsel, to
permit his examination of those files. Compare Order, United
States v. Kelly, Ciuzio & Weisz, No. 80-00340 (D.D.C. Jan. 5,
1981) (Ciuzio may examine FBI files) with Order, United
States v. Kelly, Ciuzio & Weisz, No. 80-00340 (D.D.C. Jan. 2,
1981) (only counsel may examine FBI files).

% That the district court was of the view that Ciuzio had
abandoned his decision to proceed pro se and that Pilger had
represented Ciuzio throughout the first trial is demonstrated
by its order, issued subsequent to that trial, appointing Pilger
as counsel for Ciuzio nunc pro tune November 24, 1980, the
date on which Ciuzio’s request to represent himself had been
granted. Criminal Justice Act Appointment of Kari Pilger as
Counsel for Eugene Ciuzio, United States v. Ciuzio & Weisz,
No. 80-00340 (D.D.C. July 16, 1981), RI 280. See Transcript
of Motions Hearing, Nov. 24, 1980, at 132-33.

30a

look to the motion for substitution of counsel filed by
Pilger on behalf of Ciuzio a mere three days prior to
Ciuzio’s motion’ as a reliable statement of Ciuzio’s
wishes at the time. Brown v. Wainwright, supra, 665
F.2d at 611-12. Pilger’s motion sought only to substi-
tute Salvagio as Ciuzio’s appointed counsel, and gave ab-
solutely no indication that Ciuzio had any interest in rep-
resenting himself.”

We therefore conclude that the record in this case over-
whelmingly supports the district court’s reading of Ciu-
zio’s motion as a request for substitution of counsel.
That interpretation results from a natural and reason-
able construction of Ciuzio’s motion, and is consistent
with the clear import of the motion for substitution of
counsel filed by Pilger, as well as the record of Ciuzio’s
exercise of his right of self-representation at his first
trial. The language relied on by Ciuzio, when viewed in
the context of this record, cannot reasonably be charac-
terized as an “unequivocal” assertion of the right of self-
representation.” Since Ciuzio failed to articulately and
unmistakably assert his right to represent himself at his
second trial, thereby waiving that right, we reject his
contention that he was denied the right of self-represen-
tation.

III. EVIDENTIARY ISSUES
A. Weisz’ February 2 Statement to FBI

As Weisz carried a briefcase containing $50,000 from
his February 2, 1980 meeting with Amoroso and Wein-
berg at the Hilton Hotel, he was met by two FBI agents,
Raleigh and Melore, who requested that Weisz accompany

* Substitution Motion, supra note 66.

**Id. Significantly, Pilger indicated that the purpose of
Ciuzio’s forthcoming pro se motion would be “to request a
change of counsel . . . to permit his representation at trial by
Dennis L. Salvagio, Esq.” Affidavit of Karl W. Pilger, attached
to Substitution Motion, supra note 66.

*8 See Brief for Defendant Ciuzio at 16.

3la

them to another room in the hotel.” In a statement al-
legedly given during subsequent questioning by the two
agents, Weisz admitted
that he knew full well that he was instrumental in
bringing people together to be corrupted.”

Prior to trial, Weisz objected: to the introduction of his
statement, contending, inter alia, that it was obtained in
violation of his right to assistance of counsel at a custo-
dial interrogation." Edwards v. Arizona, 451 U.S. 477,
482-85 (1981); Miranda v. Arizona, 384 U.S. 436, 444-
45, 473-76 (1966). Weisz renews this objection on ap-
peal, asserting that the district court committed reversi-
ble error by permitting Raleigh to testify to Weisz’ state-
ment.*? We conclude that the district court properly
allowed the government to adduce evidence of Weisz’
statement.

Faced with Weisz’ challenge to the admissibility of his
statement, the government was required to prove by a
preponderance of the evidence that Weisz knowingly and
voluntarily waived the right to the assistance of counsel
during custodial questioning.“ Edwards v. Arizona,

® Transcript of Motions Hearing, July 22, 1982 (After-
noon), at 33-38, 44-45, 57-60, 65-66, 72 [hereinafter cited as
Miranda Tr.]. Tr. at 807-09, 822-24, 1069-70, 1190-91, 1332.

* Tr. at 818, 1074.

“ Motion to Suppress Evidence and, in the Alternative, for
a Pre-Trial Hearing, United States v. Ciuzio & Weisz, No. 80-
00340 (D.D.C. filed July 12, 1982), RI 324. At trial Weisz also
denied making the incriminating statement attributed to him.
Tr. at 1255-58.

* Brief for Defendant Weisz at .4-49.

* Miranda and subsequent decisions establish beyond ques-
tion that if an
individual states that he wants an attorney, the interroga-
tion must cease until an attorney is present.
Miranda v. Arizona, supra, 384 U.S. at 474. Accord Edwards
v. Arizona, supra, 451 U.S. at 484-85; United States v. Hinck-
ley, 672 F.2d 115, 122 (D.C. Cir. 1982) (per curiam).

32a

supra, 451 U.S. at 482; North Carolina v. Butler, 441
U.S. 369, 373 (1979); Lego v. Twomey, 404 U.S. 477,
487-89 (1972); United States v. Hackley, 636 F.2d 493,
500 (D.C. Cir. 1980); United States v. Glover, 596 F.2d
857, 865 (9th Cir.), cert. denied, 444 U.S. 857, 860
(1979). In reviewing the district court’s ruling that
the government had met this burden, we are not bound
by the district court’s conclusions of law and must deter-
mine whether it applied the correct rule of law to the
facts of the case. However, we must accept the district
court’s resolution of factual questions unless clearly erro-
neous. United States v. Saimiento-Rozo, 676 F.2d 146,
150 (5th Cir. 1982) ; United States v. Hinckley, 672 F.2d
115, 119 (D.C. Cir. 1982) (per curiam) ; United States
v. Glover, supra, 596 F.2d at 865.

The admissibility of Weisz’ statement turned on the
district court’s resolution of a factual dispute between
Weisz and the FBI agents regarding the course of events
which culminated in Weisz’ statement. According to
Weisz, when he reached the other hotel room the agents
told him that he was “in very deep trouble” and asked
him to read a “detailed,” “heavy sort of a document”
which outlined his “rights.” After he had read the docu-
ment, the agents demanded that he sign it; Weisz re-
fused :

I said, no way. I won’t sign it. I won’t sign any-
thing without my lawyer, and J want my lawyer.™

Despite his clear request for his attorney, the agents per-
sisted in questioning him regarding his role in Kelly’s

“Tr. at 1191-92 (emphasis added). See Miranda Tr. at 8.
* Miranda Tr. at. Tr. at 1192-96.

33a

derstood his “Miranda” rights and that he was willing
to answer the agents’ questions, but that he preferred
not to sign the waiver. The agents then proceeded to
question Weisz for approximately twenty minutes, dur-
ing which time Weisz made the incriminating statement.
Shortly thereafter, according to the agents, Weisz first
asked to speak to his attorney and all questioning by the
agents stopped.”

In ruling that Weisz’ statement was admissible, the
district court accepted the FBI agents’ version of their
questioning of Weisz, and concluded that their testimony
demonstrated that Weisz had waived his right to assist-
ance of counsel prior to questioning.” The agents’ ver-
sion was corroborated by handwritten notes taken by both
agents during the questioning of Weisz.” On this record
we cannot say that it was clearly erroneous for the dis-
trict court to credit the agents’ version of the question-
ing over that offered by Weisz.’”

Having so resolved this crucial factual dispute, the dis-
trict court was certainly correct in concluding that Weisz
had effectively waived his right to have an attorney
present during questioning. That Weisz declined to sign
the proffered waiver form is not determinative of the
waiver question; “[a]n express written .. . statement
of waiver of ... the right to counsel... is not in-
evitably either necessary or sufficient to establish waiver.”

% Miranda Tr. at 10, 39-41, 60-61, 72-73. Tr. at 809-10, 827,
1070-72.

* Miranda Tr. at 10-11, 41-42, 62-64, 75-76. Tr. at 810, 817-
18, 827, 1072-74-A, 1077.

* Miranda Tr. at 84-85.

* Miranda Tr. at 53-54, 62. Tr. at 810-11, 815-16, 829-30,
841-43, 1072-73, 1077-84.

¥® Accord United States v. Phillips, 640 F.2d 87, 98-94 (7th
Cir.), cert. denied, 451 JS. 991 (1981); United States v.
Durham, 587 F.2d 799, 801 (5th Cir. 1979).

34a

North Carolina v. Butler, supra, 441 U.S. at 373. Ac-
cord United States v. Stewart, 585 F.2d 799, 800 (5th
Cir. 1978) (per curiam), cert. denied, 441 U.S. 933
(1979) ; United States v. Cooper, 499 F.2d 1060, 1062-63
(D.C. Cir. 1974). As we recognized several years ago,

{i]t is... a common experience of life that in many
circumstances persons are willing to convey informa-
tion orally but are reluctant to put the same thing
in writing.
United States v. Cooper, supra, 499 F.2d at. 1062.7
Here Weisz, a mature, well-educated accountant,’* hav-
ing read an “Advice of Rights” form, unequivocally
stated that he understood his Miranda rights and ex-
pressly agreed to answer the FBI agents’ questions. On
these facts, we have no difficulty concluding that Weisz
waived his right to counsel prior to the start of the
agents’ questioning. Accordingly, the incriminating
statement elicited by the FBI agents during their ques-
tioning of Weisz was properly admitted by the district
court. We reject Weisz’ contention to the contrary.

B. Kelly's January 8 Meeting with Amoroso

On the evening of January 8, 1980, Kelly met privately
with Amoroso in the library of Abdul Enterprises’ Wash-
ington, D.C., townhouse. They discussed the assistance

161 Cooper is virtually indistinguishable. In that case, four
FBI agents investigating a bank robbery confronted Cooper
and asked to speak to him. After reading an “Advice of
Rights” form, Cooper stated that he understood his rights.
When asked to sign the waiver on the form, Cooper declined,
but indicated that he wanted to answer the FBI agents’ ques-
tions, During the subsequent questioning, Cooper made sev-
eral damaging statements. United States v. Cooper, supra, 499
F.2d at 1061-62. Noting, inter alia, that Cooper was well edu-
cated, we rejected his claim that the statements were obtained
in violation of his Miranda rights, and held his statements
admissible. Id. at 1062-63.

102 Tr. at 1098-99.

35a

required by the wealthy Arabs and the investments the
Arabs planned to make in order to protect their “friends”
in Congress. Toward the end of the meeting, after agree-
ing to help the Arabs with their immigration difficulties,
Kelly accepted $25,000 from Amoroso and stuffed the
cash into the pockets of his suit.'* Unbeknownst to Kelly
and the others, the FBI recorded the meeting on video
tape.

Prior to trial, Ciuzio and Weisz objected to the intro-
duction of the FBI video tape of the meeting. Both con-
tended that the “probative value [of the video tape was]
substantially outweighed by the danger of unfair prej-
udice,” Fed. R. Evid. 403, because the sight of a United
States Congressman stuffing $25,000 into his pockets
would so inflame the jury that it would convict those
associated with Kelly irrespective of the evidence™ Ciu-

108 See Part I.B.2. supra.

1% Motion to Suppress Evidence and, in the Alternative, for
a Pre-Trial Hearing, United States v. Ciuzio & Weisz, No. 80-
00840 (D.D.C. filed July 12, 1982), RI 324; Motion of Defend-
ant Ciuzio to Suppress Evidence of January 8, 1980 Meeting
Between FBI Agent Amoroso and Richard Kelly, United
States v. Ciuzio & Weisz, No. 80-00340 (D.D.C. filed July 9,
1982), RI 322. Transcript of Motions Hearing, July 22, 1982
(Morning), at 48-49, 53 [hereinafter cited as Motions Tr.].
Ciuzio also objected to the introduction of the video tape on
the grounds that (1) the events which occurred at the meet-
ing were the product of governmental misconduct violative of
due process and, therefore, evidence of the meeting was
inadmissible; and (2) Kelly’s statements at the meeting
were not “statement[s] by a coconspirator of a party dur-
ing the course and in furtherance of the conspiracy,” Fed. R.
Evid. 801(d) (2) (E), and, therefore, were inadmissible hear-
say. Motion of Defendant Ciuzio to Suppress Evidence of
January 8, 1980 Meeting Between FBI Agent Amoroso and
Richard Kelly, United States v. Ciuzio & Weisz, No. 80-00340
(D.D.C. filed July 9, 1982), RI 322. Motions Tr. at 50-52.
Ciuzio renews these objections on appeal, Brief for Defendant
Ciuzio at 22-31, 36-43, and we address them infra. See Parts
ITL.C. & V. infra.

36a

zio objected to the playing of the entire video tape,’*
while Weisz sought principally to have the offensive
“money stuffing’ scene redacted from the tape.’** The
district court concluded that the video tape had consid-
erable probative value, but was concerned that the money
stuffing scene added nothing to the government’s case.”
Noting that “[t]o see a Congressman stuffing any amount
of money in his pockets is a disgusting, revolting sight,”
the district court suggested that “the prejudice [of the
money stuffing scene] far outweighs the probative
value.” ** Nevertheless, the district court reserved its
ruling on the admissibility of the money stuffing scene
and, at trial, permitted the entire video tape to be played
for the jury.”

18 Ciuzio was of the view that if any portion of the video
tape was admitted, then the entire tape should be admitted.
Motions Tr. at 48-49. Ciuzio’s defense was that he never in-
tended to have Kelly receive any money, but rather that he
intended to take Abscam’s money for himself. Tr. at 576-81.

Ciuzio agreed with the district court’s view that the video tape -

showed
lack of preparation. A man comes in with just a suit
jacket and he’s going to stuff twenty-five thousand dollars
in his pocket. That doesn’t show that he came prepared
to take any money.

Motions Tr. at 48-49.

10 Motions Tr. at 53. To avoid playing the money stuffing
scene for the jury, Weisz offered to “stipulate that Kelly took
the money.” Id. The government insisted on proving that
Kelly had accepted the $25,000, as was its right. United States
v. Caldwell, 543 F.2d 1333, 1859 n.134 (D.C. Cir. 1975), cert.
denied, 423 U.S. 1087 (1976) (party not required to accept
judicial admission of opponent, but rather may insist on prov-
ing fact) ; United States v. Cockerham, 476 F.2d 542, 545 (D.C.
Cir. 1978) (per curiam) (defendant has no right to require
government to stipulate facts with inflammatory impact).

T Motions Tr. at 36-87, 41-42, 44-45, 48, 52.
28 Motions Tr. at 36, 42, 52.
10° Motions Tr. at 52, 54. Tr. at 658.

37a

Ciuzio and Weisz now contend that the district. court’s
admission of the video tape of the Kelly-Amoroso meeting
was reversible error, once again arguing that the proba-
tive value of the tape was outweighed by the prejudice
associated with the money stuffing scene. However, the
balancing of probative value against potential for unfair
prejudice called for by Fed. R. Evid. 403 is a task com-
mitted to the sound discretion of the district court; its de
cision will not be disturbed on appeal except for grave
abuse. United States v. Allen, 629 F.2d 51, 58 (D.C. Cir.
1980) ; United States v. Day, 591 F.2d 861, 878 (D.C.
Cir. 1978) ; United States v. Wright, 489 F.2d 1181, 1186
(D.C. Cir. 1973). We cannot say that the district court
abused its discretion in allowing the government to play
the entire video tape for the jury.

The probative value of the video tape of Kelly’s meet-
ing with Amoroso, including the money stuffing scene,
cannot be gainsaid. The meeting provided direct evi-
dence of Kelly’s relationship with Ciuzio when, during
the meeting, Kelly asked to talk to Ciuzio and later re
quested that Amoroso “deal with Gino [Ciuzio] about”
Kelly’s $25,000.%° The video tape itself allowed the jury
the unique opportunity to observe Kelly’s demeanor as
Amoroso explained and Kelly accepted the obviously cor-
rupt proposal. Kelly registered no surprise or protest
during Amoroso’s discourse, but rather demonstrated fa-
miliarity with the proposal by revealing that he under-
stood the purpose for the Arabs’ investments in his dis-
trict.“ When Amoroso offered the $25,000 in cash, Kelly
calmly stuffed the five packets of bills into his suit, all the
while continuing his conversation with Amoroso about a
possible investment for the Arabs in Florida.“* These

2° Transcript of Meeting of Jan. 8, 1980, at 21-23. See text
at notes 46-47 supra.

111 Transcript of Meeting of Jan. 8, 1980, at 12-15. See text
at notes 43-44 supra.

2 Transcript of Meeting of Jan. 8, 1980, at 28-30.

38a

facts indicate that Kelly was already familiar with the
proposal, i.e., that Ciuzio had explained the Arabs’ pro-
posal to Kelly prior to January 8. Finally, the video tape
was irrefutable evidence that Kelly had, in fact, been
bribed, thus proving one element of the aiding and abet-
ting charge lodged against Ciuzio and Weisz. See United
States v. Staten, 581 F.2d 878, 886-87 (D.C. Cir. 1978).

Nor can we agree that Ciuzio and Weisz were unfairly
prejudiced by the district court’s admission of the video
tape. The tape, after all, simply permitted the jury to
see the commission of the very crime which Ciuzio and
Weisz were charged with assisting and conspiring to com-
mit. While such direct evidence of crime is certainly
prejudicial to a defendant’s case, without more it is not
unfairly so. United States v. Day, supra, 591 F.2d at
878; Fed. R. Evid. 403. Ciuzio and Weisz argue that
the visually recorded evidence of Congressman Kelly
selling his office would so influence some jurors that
they would be incapable of rendering an objective verdict.
However we believe it more likely that jurors would cor-
rectly find such evidence to be strongly probative of guilt.
Furthermore, we suspect that viewing Kelly’s acceptance
of the money on the video tape, as opposed to hearing a
stipulation of that fact as suggested by Weisz,’ could
create little incremental unfair prejudice since jurors
would have learned of Kelly’s misdeed in either case.

In any event, whatever potential for unfair prejudice
that might have inhered in the money stuffing scene was
dissipated by the district court’s careful voir dire of the
prospective jurors. The district court described to each
prospective juror the conduct alleged by the government
‘and asked each whether the nature of that conduct or, in
particular, the sight of a Congressman accepting $25,000
would so offend them that they would find all those per-

448 Motions Tr. at 53. See note 106 supra.

39a

sons associated with the Congressman guilty.'* In at
least one instance, a prospective juror responded positively
and was excused for cause.*“ We have previously recog-
nized the value of voir dire as a means to identify pro-
spective jurors who might be prejudiced against a defend-
ant by the nature of evidence to be presented at trial,
United States v. Chapin, 515 F.2d 1274, 1284-85 (D.C.
Cir.), cert. denied, 423 U.S. 1015 (1975), and we again
commend the practice to the district courts. Here, the
district court’s exhaustive voir dire permitted the parties
to assemble a jury not likely to be unfairly prejudiced by
the sight of Kelly accepting $25,000 from Amoroso. Ac-
cordingly, given the very considerable evidentiary value
of the video tape of Kelly’s meeting with Amoroso, we
are of the opinion that the district court did not abuse its
discretion in allowing the entire video tape into evidence.***

C. Statements of Co-Conspirators

Throughout the Abscam investigation, the FBI recorded
numerous telephone calls and meetings involving, inter

4 See, e.g., Tr. at 46-47, 60-61, 68-69, 115-16, 121-22, 125-
26, 137-38, 146-47, 151-53, 163-64, 169-70. Voir dire consumed
three days at trial. Tr. at 1-529.

us Tr. at 113-14.

16 No extended discussion is required to dispose of Ciuzio’s
contention that the district court erred in admitting the long-
distance telephone toll records of Ciuzio, Kelly and Weisz to
show “contacts” between the phones of the co-conspirators.
Brief for De.endant Ciuzio at 32-35. At trial, Ciuzio argued
that the records merely showed

40a

alia, Ciuzio, Kelly and Weisz. These audio and video re-
cordings provided the bulk of the evidence against Ciuzio
and Weisz.“" Prior to trial, Ciuzio sought to suppress a
number of these recordings, arguing that the statements
of Kelly and Weisz contained therein were inadmissible
hearsay. Ciuzio contended that there was not “substantial
independent evidence” of a conspiracy and his participa-
tion therein to permit admission of the statements as
“statement([s] by a coconspirator of a party during the
course and in furtherance of the conspiracy.” Fed. R.
Evid. 801(d) (2) (E).“* The district court admitted the
statements, finding that the government had demonstrated
“some community of purpose” among Ciuzio, Kelly, Rosen-
berg and Weisz, and had no problem showing what that
purpose was—‘the community of purpose was to bribe a
Congressman.” ™

Ciuzio now contends that the district court applied an
erroneous legal standard in deciding whether to admit the
statements of Kelly and Weisz as evidence against Ciuzio.
Ciuzio asserts that the out-of-court statements of his al-
leged co-conspirators were admissible against him under
Rule 801(d) (2) (E) only if the district court found sub-
stantial independent evidence of a conspiracy, i¢., an
unlawful combination. Since, according to Ciuzio, the dis-
trict court only found a “community of purpose” and
there was no independent evidence that that purpose was
unlawful, Ciuzio concludes that it was reversible error for
the district court to admit the statements.” We cannot

“1 Tr. at 644-48, 652-58, 665-67, 725, 728-30, 746, 782-84,
962, 964-69, 985-87, 989-92, 1002-03.

™ Motion of Defendant Ciuzio to Suppress Hearsay State-
ments of Alleged Coconspirators, United States v. Ciuzio &
Weisz, No, 80-00840 (D.D.C, filed July 9, 1982), RI 317. See
note 104 supra.

™* Motions Tr. at 38-34.
™ Brief for Defendant Ciuzio at 36-48.

4la

agree that the questioned evidence was improperly ad-
mitted.

Fed. R. Evid. 801(d) (2) (E) embodies the long-standing
doctrine that when two or more individuals are acting in
concert toward a common goal, the out-of-court statements
of one are not hearsay and are admissible against the
others, if made in furtherance of the common goal. The
doctrine, applicable in both civil and criminal cases,
whether or not a conspiracy is charged, is founded on
concepts of agency and partnership law:

(W]hen any number of persons associate themselves
together in the prosecution of a common plan or en-
terprise, lawful or unlawful, from the very act of
association there arises a kind of partnership, each
member being constituted the agent of all, so that
the act or declaration of one, in furtherance of the
common object, is the act of all, and is admissible as
primary and original evidence against them.

Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 249
(1917). See United States v. Jackson, 627 F.2d 1198,
1214-16 (D.C. Cir. 1980) ; United States v. Trowery, 542
F.2d 623, 626-27 (3d Cir. 1976) (per curiam), cert. de-
nied, 429 U.S. 1104 (1977).

Although Rule 801(d)(2)(E) refers to “conspiracy”
and statements of a “coconspirator,” its use of those terms
is not intended to limit applicability of the doctrine to

42a

831, 844 (D.C. Cir. 1980) ,'** the term “conspiracy,” when
used in this context, does not, as Ciuzio suggests, refer
solely to unlawful combinations:

(I]t is not necessary to show by independent evi-
dence that the combination was criminal or other-
wise unlawful. The element of illegality may be
shown by the declarations themselves.

Hitchman Coal & Coke Co. v. Mitchell, supra, 245 U.S.
at 249. Accord United States v. Jackson, supra, 627 F.2d
at 1216. Ciuzio’s contention to the contrary—i.e., that
admissibility of co-conspirator statements turns on proof
by substantial independent evidence of an unlawful com-
bination—is simply not in accord with the law of this
Circuit."

Nor is it clear, as Ciuzio asserts, that the district court
failed to find an unlawful “community of purpose” among
Ciuzio and his alleged co-conspirators. The district court
seemingly found that the government could show that
Ciuzio, Weisz and the others were acting in concert to-
ward an unlawful goal when it concluded that the govern-
ment had no problem showing that their “community of
purpose was to bribe a Congressman.” "™™ There is cer-

™ Accord United States v. Nixon, 418 U.S. 683, 701 (1974);
United States v. Nicoll, 664 F.2d 1308, 1311 (5th Cir.), cert.
denied, 457 U.S. 1118 (1982); United States v. Jackson, supra,
627 F.2d at 1219; United States v. Slade, 627 F.2d 293, 307
(D.C, Cir.), cert. denied, 449 U.S. 1034 (1980).

12 Indeed, Ciuzio appeared to recognize this fact in his mo-
tion to suppress the co-conspirator statements:

{I]t is not necessary to show in this jurisdiction that
a conspiracy or “combination” had an unlawful pur-
Motion of Defendant Ciuzio to Suppress Hearsay Statements

of Alleged Coconspirators 3, United States v. Ciuzio & Weisz,
No. 80-00340 (D.D.C, filed July 9, 1982), RI 317.

13 Motions Tr. at 34. Ciuzio cannot be heard to fault the
district court for failing to state its finding with more preci-

43a

tainly substantial evidence in the record, in addition to
statements by Ciuzio’s co-conspirators, to support the dis-
trict court’s conclusion. For example, Ciuzio told Amoroso
and Weinberg at their December 19, 1979 meeting that he
and Weisz had discussed the Arabs’ proposal and decided
that Kelly should receive $100,000 of the $250,000 fee be-
cause “that(’s] what he needs to straighten his whole life
out.” Later, stating that he was “obligated to protect”
Kelly because “once you give em money ya... com-
promise him,” Ciuzio agreed to “lay out the story” for
Kelly after he received “clearance” from Weisz.~ These
facts suggest that Ciuzio was working closely with Weisz
to arrange payment of a $100,000 bribe to Kelly.

In addition, Ciuzio indicated that he had explained the
proposal to Kelly and that Kelly had left the arrange-
ments to him. Having agreed to “lay out the story” for
Kelly, Ciuzio asked Kelly to call him from a “public phone
booth,” rather than from his congressional office, to dis-
- cuss the transaction.’ The next day, Ciuzio told Wein-
berg that he had, in fact, spoken with Kelly and that
Kelly was available for a meeting on January 8, 1980."**
Ciuzio, Kelly, Rosenberg and Weisz subsequently arrived
together at Abdul Enterprises’ townhouse for the meet-
ing with Amoroso and Weinberg.” That Ciuzio wanted
to use an “outside call” * to discuss the Arabs’ proposal

sion; Ciuzio’s counsel declined an offer to be heard on the
question shortly after the district court reached its conclusion.
Motions Tr. at 35.

%* Transcript of Meeting of Dec. 19, 1979, at 17.

128 Td. at 18-19, 23-24, 33-34.

138 Id, at 16, 26, 30, 35.

4%? Transcript of Telephone Call of Dec. 20, 1979, at 2, 8, 10.
28 Transcript of Telephone Call of Dec. 21, 1979, at 3.

1% Tr. at 1015-17, 1168.

14° Transcript of Telephone Call of Dec. 20, 1979, at 8.

44a

with Kelly is strong evidence that Ciuzio was concerned
that the subject matter of their conversation not be over-
heard by anyone in Kelly’s office. These facts suggest
that Ciuzio fully explained the Arabs’ corrupt proposal
to Kelly and was working with Kelly to arrange the bribe.
Thus there is substantial independent evidence in the
record to support a conclusion that Ciuzio was acting in
concert with Kelly and Weisz to arrange Amoroso’s pay-
ment of a bribe to Kelly.

In sum, we reject both the legal and factual predicates of
Ciuzio’s argument. Under Fed. R. Evid. 801(d) (2) (E),
the out-of-court statements of Kelly and Weisz were ad-
missible against Ciuzio upon a showing, by substantial
evidence independent of those statements, that Ciuzio,
Kelly and Weisz were engaged in a common enterprise.
Proof by substantial independent evidence that the
enterprise was unlawful was not required. Hitchman
Coal & Coke Co. v. Mitchell, supra, 245 U.S. at 249;
United States v. Jackson, supra, 627 F.2d at 1216. Fur-
thermore, we find that the district court did, in fact,
conclude that there was substantial independent evidence
that Ciuzio, Kelly and Weisz were engaged in a common
enterprise, and that the goal of that enterprise was the
bribery of the Congressman. On the basis of this finding,
the district court admitted the out-of-court statements of
Kelly and Weisz as evidence against Ciuzio.“* Our review
of the record reveals no error on the part of the district -
court in admitting these statements.”

131 Motions Tr. at 33-34. However, the district court in-
structed the jury that it could not consider the statements of
Kelly and Weisz as evidence against Ciuzio ~

unless and until it is established to your satisfaction be-
yond a reasonable doubt that a conspiracy existed and
that the defendant was one of its members.

Tr. at 1554-55.

182 We also find untenable Ciuzio’s contention that the state-
ments of his alleged co-conspirators were inadmissible against

4Sa

D. Failure to Record Conversations

One of the many noteworthy aspects of the Abscam in-
vestigation was the FBI’s extensive use of audio and video
recording equipment to create a record of conversations
between the Abscam operatives and individuals under in-
vestigation. Weinberg was instructed to record all of his
Abscam-related telephone conversations and, insofar as
was possible, meetings were arranged to be held in loca-
tions where the FBI could video tape the proceedings.’*
On a few occasions, however, Weinberg and the FBI did
not record significant conversations with targets of the
Abscam investigation.

Weisz now contends that the FBI’s failure to record or
otherwise memorialize all conversations during the Ab-
scam investigation deprived him of a fair trial and vio-
lated principles of due process. Weisz notes that no
recording was made of his December 21, 1979 telephone
conversation with Weinberg ™ or of his February 2, 1980

him because he had withdrawn from the conspiracy during his
exchange with Weinberg on January 8, 1980. Brief for De-
fendant Ciuzio at 29-30. See text at notes 41-42 supra. We
cannot say that Ciuzio acted affirmatively to disavow the pur-
pose of the conspiracy when, during that exchange, he con-
tinued to support an indirect payment to Kelly and, subse-
quently, he conversed with Kelly during the course of Kelly’s
meeting with Amoroso. See United States v. Borelli, 336 F.2d
376, 388 (2d Cir. 1964), cert. denied, 379 U.S. 960 (1965).

133 Tr. at 638-39, 725, 728, 962, 985. The Abscam investiga-
tion generated over a thousand recorded conversations, the
majority of which were telephone conversations involving
Weinberg. Tr. at 784.

1% Weinberg testified that he was unable to record telephone
conversations if someone unaware of the Abscam investigation
was present. Tr. at 990-92, 1008. Weinberg also indicated that
occasionally he did not have his recording equipment, or tapes
therefor, available to record a conversation. Tr. at 990-92,
1008. _ =

138 See note 39 supra.

46a

questioning by the FBI.%* Furthermore, no FBI Form
302 was prepared memorializing the substance of his
conversation with Weinberg.’ Relying on our seminal
decision in United States v. Bryant, 439 F.2d 642 (D.C.
Cir. 1971), Weisz asserts that the FBI’s failure to “pre-
serve” these allegedly exculpatory conversations requires
reversal of his conviction. We find this argument to be
wholly without merit.

Weisz’ reliance on Bryant and subsequent cases requir-
ing government preservation and production at trial of
notes, tapes, and other evidence created during an inves-
tigation is inapposite.* In Bryant, an FBI agent tape
recorded a critical meeting between undercover agents
and the defendant, but made no effort to preserve the tape
because he “had never intended the tape to be used as

138 See text at notes 62-63, 94-97 supra. Tr. at 824.

137 Tr. at 727-31, 783. An FBI Form 302 was prepared sum-
marizing the FBI’s questioning of Weisz on February 2. Tr.
at 815-16, 1077-84. We reject Weisz’ suggestion that a failure
to comply with FBI regulations, which, according to Weisz,
required preparation of an FBI Form 302 on Weinberg’s con-
versation with Weisz, can require reversal of a conviction.
Cf. United States v. Caceres, 440 U.S. 741, 754-57 (1979)
(mere violation of agency regulations is not grounds for exclu-
sion of evidence). See Brief for Defendant Weisz at 57.

188 See United States v. Peters, 587 F.2d 1267, 1275 (D.C.
Cir. 1978) (transcript of grand jury testimony) ; United States
v. Harrison, 524 F.2d 421, 423 (D.C. Cir. 1975) (rough notes
of FBI agent); United States v. Butler, 499 F.2d 1006, 1007
(D.C. Cir. 1974) (results of urine test); United States v.
Patterson, 495 F.2d 107, 112-13 n.7 (D.C. Cir. 1974) (results
of fingerprint investigation) ; United States v. Bundy, 472 F.2d ©
1266, 1267 (D.C. Cir. 1972) (per curiam) (rough notes of
police officer) ; United States v. Bryant, supra, 439 F.2d at 652-
53 (tape recording of meeting with defendant). Compare
United States v. Ferguson, 498 F.2d 1001, 1005-06 (D.C. Cir.),
cert. denied, 419 U.S. 900 (1974) (Court declines to extend
Bryant rationale to disappearance of informant whose identity
was known only to the government).

47a

evidence at trial.” Id. at 645-47. Thus we were required
to consider

the legal consequences of intentional non-preservation
7 sphimis 25 officials of highly relevant evidence

Id. at 647 (emphasis added). Concerned that decisions
made by investigative personnel to dispose of evidence
could, if uncontrolled, subvert the integrity of the crimi-
nal process, we held that the constitutional and statutory

duty of disclosure attaches in some form once the
Government has first gathered and taken possession
of the evidence in question. Otherwise, disclosure
might be avoided by destroying vital evidence before
prosecution begins or before defendants hear of its
existence. ... [BJefore a request for discovery has
been made, the duty of disclosure is operative as a
duty of preservation.

Id. at 644, 651 (footnote omitted) (emphasis added).
Accordingly, we required the government to implement
and

follow rigorous and systematic procedures designed
to preserve all discoverable evidence gathered.in the
course of a criminal investigation.

Id. at 652 (footnote omitted) (emphasis added).

Nothing in Bryant suggests that the FBI was obli-
gated to create documentary evidence of its conversations
with Weisz. The clear thrust of that decision is to re-
quire the government to preserve discoverable evidence
once such evidence is created or uncovered by its inves-
tigative activities. But a conversation is not “discover-
able,” at least in the sense that that term is generally
used in the adversary process; it is only such notes, mem-
oranda, and recordings of the conversation as may be
prepared by the government that are discoverable.”

1% Of course, the substance of a conversation may be “dis-
covered” by questioning the partipants therein.

48a

Since the Bryant “duty of preservation” does not attach
unless and until such discoverable materials come into
existence, id. at 651-52, the FBI was under no duty to
“preserve” its conversations with Weisz by recording or
otherwise memorializing them.”

This interpretation of Bryant is supported by our sub-
sequent decision in United States v. Butler, 499 F.2d
1006 (D.C. Cir. 1974). In that case the defendant sought
to discover the results of a blood alcohol test allegedly
performed on a sample of his urine taken by the police.

Although the government acknowledged that the urine.

sample had been taken, it was unable to find any record
indicating that the blood alcohol test had, in fact, been
performed. Id. at 1007. Although we concluded that
under Bryant the government was required to preserve
the results of such a test, if performed, we held that if

a sample of [the defendant’s] urine was taken...
[but] no test was made, that would end the matter,
and the judgment of conviction would remain un-
disturbed. -
Id. at 1007-08 (emphasis added). Clearly, we concluded
in Butler that Bryant imposed no obligation on the gov-
ernment to perform the blood alcohol test and create the
evidence sought by the defendant; rather, we found that
Bryant only required the government to preserve the test
results if it chose to perform the test. Likewise, we con-
clude that Bryant did not require the FBI to record its
conversations with Weisz and thereby create the docu-
mentary evidence sought by Weisz.

Weisz also suggests that we must require the FBI to
record all conversations with individuals under investiga-
tion because otherwise the

temptation for the government to record only con-
versations that are favorable to it becomes over-
whelming.*“

4 See Brief for Defendant Weisz at 54-55.

14 Id. at 56.

49a

Initially, we are at a loss to understand how the FBI
could “successfully’”’ succumb to the temptation described
by Weisz. Prior to the start of a conversation, when the
decision to record would have to be made, the FBI could
only speculate whether the content of the conversation
would be “favorable.” '* If the FBI were to record all
conversations and then retain only “favorable” conversa-
tions, its conduct would fall squarely within the prohibi-
tion of Bryant.

In any event, we do not believe that judicial interven-
tion is necessary to encourage the FBI to record, when-
ever possible, its conversations with persons under in-
vestigation. We think it obvious that the FBI, in its
efforts to discover and develop evidence for use at crimi-
nal trials, has every incentive to gather that evidence in
the most reliable and persuasive form. That this is, in
fact, the case is amply demonstrated by the Abscam in-
vestigation, where the FBI, under no compulsion from
the judiciary, recorded virtually all of its hundreds of
telephone calls and meetings with individuals under in-
vestigation.** Under these circumstances there is simply

142 We take considerable exception to the underlying prem-
ise of Weisz’ argument, i.c., that the FBI would, absent judi-
cial supervision, conceal or destroy exculpatory evidence in
order to obtain convictions of those it suspected of criminal
activity. See id.

“48 Tr, at 638-39, 725, 728, 784, 962, 985. The FBI failed to
record only one significant conversation during its investiga-
tion of Kelly and his associates, the five minute telephone con-
versation between Weinberg and Weisz on December 21, 1979.
Weinberg testified that he could not record the call because
someone unaware of the Abscam investigation entered the
room where he was making the call. Amoroso testified that
he did not prepare an FBI Form 302 on the conversation be-
cause Weinberg told him that it only involved arrangements
for the January 8, 1980 meeting. Tr. at 729-34, 783, 984-85,
992, 1189, 1268. One other conversation—an eleven minute
telephone conversation between Weinberg and Ciuzio on De-
cember 18, 1979——was not recorded; however, the substance

50a

no need for a judicial requirement that the FBI record
all conversations with the targets of its investigations.
Accordingly, we decline Weisz’ invitation to fashion a
constitutionally based obligation on the part of law en-
forcement officials to record or otherwise memorialize all
conversations with persons suspected of criminal activity.

IV. THE MOTIONS FOR JUDGMENT OF ACQUITTAL

At the close of the government’s case, and again at the
close of all of the evidence, Ciuzio and Weisz moved for
judgments of acquittal, contending that there was insuf-
ficient evidence in the record to support convictions on
the charges brought by the government. The district
court summarily denied their motions.“ Ciuzio and
Weisz renew these contentions on appeal, arguing prin-
cipally that the evidence was insufficient to permit the
jury to conclude, beyond a reasonable doubt, that they
possessed the requisite intent to participate in Amoroso’s
bribery of Kelly.

Our task in reviewing the district court’s denial of the
motions for judgment of acquittal is identical to that of
the district court in considering the motions in the first
instance. We must determine whether, viewing the evi-
dence most favorably to the government and according
the government the benefit of all legitimate inferences
therefrom, a reasonable juror must necessarily have had
a reasonable doubt as to the defendants’ guilt. United
States v. Singleton, 702 F.2d 1159, 1162-63 (D.C. Cir.
1983) ; United States v. Reese, 561 F.2d 894, 898 (D.C.

of that conversation was brought out in the recorded meeting
between Ciuzio and the Abscam operatives the following day.
Tr. at 729, 746, 782-83, 884-86. As can be seen, the FBI
operatives successfully recorded the vast majority of their
communications with Ciuzio, Weisz and their alleged co-
conspirators. We cannot fault the FBI’s occasional failure to
record Abscam related conversations.

4 Tr. at 930-35, 1348-49.

Sla

Cir. 1977) ; Curley v. United States, 160 F.2d 229, 232-
383 (D.C. Cir.), cert. denied, 331 U.S. 837 (1947). It is
not necessary that the “evidence foreclose every conceiv-
able premise inconsistent with guilt” because

{i]f the evidence reasonably permits a verdict of
acquittal or a verdict of guilt, the decision is for the
jury to make.
United States v. Carter, 522 F.2d 666, 682 (D.C. Cir.
1975) ; Curley v. United States, supra, 160 F.2d at 237.
Thus a judgment of acquittal is appropriate only when
there is no evidence upon which a reasonable juror might
fairly conclude guilt beyond a reasonable doubt. United
States v. Reese, supra, 561 F.2d at 898; United States v.
Curley, supra, 160 F.2d at 232-33. After careful review
of the evidence in this case, we are convinced that the
district court properly denied the motions for judgment
of acquittal made by Ciuzio and Weisz.
A. Ciuzio
Ciuzio’s defense at trial was based on his assertion
that he lacked the intent necessary to be convicted of the
crimes charged in the indictment. Specifically, Ciuzio con-
tended that the evidence demonstrated that he never in-
tended for Kelly to be bribed by Amoroso, but rather
showed that he was trying to take the money offered by
the Abscam operatives for himself*“ Although there is
evidence in the record which supports Ciuzio’s defense,“
there is ample evidence from which a reasonable juror
could conclude that Ciuzio intended for Kelly to receive
Amoroso’s bribe. Accordingly, judgment of acquittal was
not appropriate.
The video tape of Kelly’s January 8 meeting with
Amoroso permitted the jury to observe Kelly’s demeanor
45 Tr. at 573, 576-81, 1890-91, 1406-07, 1425-27, 1429, 1432-
33, 1488. See Brief for Defendant Ciuzio at 45, 49, 52-53.
144 See, ¢.9., Tr. at 954-58, 980.

52a

as Amoroso outlined the obviously corrupt proposal. Kelly
registered no surprise or protest, but instead showed his
familiarity with the proposal when he told Amoroso
that he understood the “protective” purpose for the
Arabs’ investments in his district.***7 Kelly also demon-
strated that he had considered the Arabs’ proposal prior
to the meeting by discussing specific potential invest-
ments with Amoroso.** From this evidence the jury
could reasonably infer that Ciuzio made good on his
promise to Amoroso and Weinberg to “lay out the story”
for Kelly.“

Furthermore, in a telephone call on December 20,
Ciuzio told Weinberg that he had asked Kelly to call him
from a “public phone booth,” rather than from his con-
gressional office, to discuss the transaction.“ The next
day Ciuzio told Weinberg that Kelly had returned his
call as requested and was available to meet Amoroso on
Jauuary 8.™ Ciuzio’s request that Kelly use an “outside
call” *? to discuss the Arabs’ proposal provides evidence
from which the jury could infer that Ciuzio was ccn-
cerned that the subject matter of their conversation not
be overheard by persons in Kelly’s office. These facts
support the conclusion that Ciuzio was aware of the cor-
rupt nature of the transaction, fully explained the
Arabs’ corrupt proposal to Kelly, and was working to
arrange Amoroso’s payment of a bribe to Kelly.

Further support for such a conclusion is provided by
the FBI’s recording of Ciuzio’s meeting with Amoroso
and Weinberg on December 19. Ciuzio told Amoroso and
Weinberg that Kelly was “already takin({g] money” and

147 Transcript of Meeting of Jan. 8, 1980, at 12-15.

148 Td, at 14-15, 28-30.

1 Transcript of Meeting of Dec. 19, 1979, at 33.

14 Transcript of Telephone Call of Dec. 20, 1979, at 2, 8, 10.

1 Transcript of Telephone Call of Dec. 21, 1979, at 3.

1462 Transcript of Telephone Cail of Dec. 20, 1979, at 8.

53a

that he and Weisz had decided that Kelly should get
$100,000 of the Arabs’ $250,000 payment because “that(’s]
what [Kelly] needs to straighten his whole life out.” ™
Ciuzio also indicated that he was “obligated to protect”
Kelly because a direct payment of a bribe could “com-
promise him.” Ciuzio’s statements strongly suggest
that he fully expected Kelly to receive a bribe in exchange
for his promise to assist the Arabs. Additionally, Ciuzio’s
concern for protecting Kelly provides a reasonable ex-
planation, consistent with a finding of criminal intent on
the part of Ciuzio, for Ciuzio’s insistence that Amoroso
not bribe Kelly directly, but rather pass the money to
Kelly through either Ciuzio or Weisz—evidence which
otherwise would support Ciuzio’s defense."

On this record, a reasonable juror could conclude be-
yond a reasonable doubt that Ciuzio knowingly partici-
pated in a scheme whereby Amoroso bribed Kelly. That
being the case, the district court properly denied Ciuzio’s
motion for judgment of acquittal and submitted the ques-
tion of Ciuzio’s guilt to the jury.

B. Weisz

Like Ciuzio, Weisz’ defense was based.on his claim that
he lacked the intent necessary to be convicted of the
crimes with which he was charged. Weisz, however, con-
tended that he was unaware of the corrupt nature of the
Arabs’ proposal and that he was paid $50,000 simply for
arranging the introduction of Kelly to Amoroso and
Weinberg.™* Once again, our review of the record dis-

188 Transcript of Meeting of Dec. 19, 1979, at 17, 39.
1 Td. at 18-19.

185 Td. at 19, 36-37; Transcript of Telephone Call of Dec. 21,
1979, at 1-2, 8-10; Transcript of Meeting of Jan. 8, 1980, at
1-11. See text at notes 41-42 supra.

Tr. at 583, 609, 1156-58, 1178, 1191, 1221-22, 1234-36,
1288, 1255, 1260-63, 1265, 1274-75, 1281, 1284-86, 1308-09,
1469, 1492-95, 1507. See Brief for Defendant Weisz at 24, 26,
33-35, 38, 40-43.

54a

closes evidence from which a juror could conclude that
Weisz knew that the Arabs’ proposal involved the pay-
ment of a bribe to Kelly and that Weisz intentionally
participated in the scheme to achieve that end.

Weisz admitted that he learned of the Arabs’ proposal
from Rosenberg in October 1979, and it is undisputed
that Rosenberg was aware that the proposal involved the
payment of bribes to congressmen.’” Ciuzio told Amoroso
and Weinberg that Weisz had given him “the figures”
and that he and Weisz had decided that Kelly should get
$100,000.%* Weisz also admitted that he discussed the
transaction with Ciuzio subsequent to Ciuzio’s December
19 meeting, and it is undeniable that Ciuzio was made
aware of the corrupt nature of the Arabs’ proposal at that
meeting.” It would be entirely reasonable for a juror to
infer from these facts that Weisz learned through his
conversations with Ciuzio and Rosenberg that the Arabr’
proposal involved the payment of a bribe to Kelly.

Likewise, Weisz, in statement: recorded by the FBI,
revealed that he was aware that the transaction involved
the payment of a bribe to Kelly. When asked by Wein-
berg how the $225,000 balance should be split, Weisz re-
plied, “Its fifty, fifty, fifty, seventy-five;” Weisz also told
Weinberg to give Kelly’s share to Ciuzio, who would “take
card’ of Kelly.” The next day, Weisz was surprised, but
unconcerned, when he learned that Amoroso intended to

= Tr, at 641-42, 1105-06, 1221-22.
488 Transcript of Meeting of Dec. 19, 1979, at 17.

we Id, at 11, 14, 17-19, 22, 28-29, 33. Tr. at 1138, 1158, 1234-
36, 1267, 1269-70, 1274-75. Ciuzio told Amoroso and Weinberg
that he would have to “clear” the transaction with Weisz be-
cause it was “his package.” Transcript of Meeting of Dec. 19,
1979, at 23-24, 33-34, 36, 52-53.

1” Transcript of Telephone Call of Feb. 1, 1980, at 2-3. See
text at notes 54-55 supra.

55a

deliver Kelly’s $75,000 personally.'* These statements,
coupled with Ciuzio’s assertion that Weisz was aware that
Kelly’s split was $100,000, clearly indicate that Weisz
knew that the Arabs’ proposal involved the payment of a
substantial bribe to Kelly and that Kelly had already re-
ceived $25,000 of that bribe during his January 8 meet-
ing with Amoroso,'™

Finally, in his statement to the FBI on February 2,
Weisz indicated that

he knew full well that he was instrumental in bring-
ing people together to be corrupted.’**

From this evidence, a juror could conclude that Weisz
was aware that Kelly would receive a bribe from Amoroso
during the meeting which Weisz helped to arrange. The
evidence of Weisz’ participation is clearly proof beyond
a reasonable doubt. Accordingly, the district court prop-
erly denied Weisz’ motion for judgment of acquittal and
submitted the question of his guilt to the jury.

V. Due Process Issue

Subsequent to his first trial, Ciuzio filed a motion to
dismiss the indictment against him on the grounds that
the FBI’s conduct during the Abscam investigation was
so outrageous that his prosecution was barred by princi-
ples of due process."* Although the district court dis-
missed the indictment against Kelly on due process

1 Transcript of Meeting of Feb. 2, 1980, at 6-7. See text at
note 60 supra.

1 At trial, Weisz lamely explained that the “fifty, fifty, fifty,
seventy-five” split involved “four separate packages, but only
for three people,” denying that Kelly was to receive any money.
Tr. at 1284-86, 1308-09.

Tr, at 817-18, 831, 1074.

1* Motion of Defendant Eugene Ciuzio to Dismiss the Indict-
ment on Due Process Grounds, United States v. Kelly, Ciuzio
& Weisz, No. 80-00840 (D.D.C. filed Feb. 20, 1981), RI 275.

56a

grounds and granted Ciuzio and Weisz a new trial, it
denied Ciuzio’s due process motion.’* Based on the dis-
trict court’s dismissal of the indictment against Kelly,
Ciuzio moved to dismiss the aiding and abetting charge
against him and sought to suppress the FBI video tape
of Kelly’s January 8, 1980 meeting with Amoroso.'* The
district court refused to dismiss the aiding and abetting
charge and permitted the video tape to be played for the
jury.’" Ciuzio now contends that the district court erred
in denying his various due process motions. We disagree.

To the extent that Ciuzio’s contentions are based on the
district court’s dismissal of the indictment against Kelly
on due process grounds '® they are foreclosed by our re-
cent decision reversing the district court and ordering re-
instatement of the indictment and jury verdict against
Kelly. United States v. Kelly, 707 F.2d 1460, 1461 (D.C.
Cir. 1983) (per curiam). As to Ciuzio’s argument that
the FBI’s conduct in furtherance of Abscam was so out-
rageous that his prosecution would violate principles of
due process,‘ we simply note that in Kelly we held that
the FBI’s conduct during the Abscam investigation, as
it involved Kelly, did not reach those intolerable or out-
rageous levels that would violate due process. Jd. at 1473-
74 (opinion of MacKinnon, J.) ; id. at 1476-77 (opinion

1% United States v. Kelly, supra, 5389 F. Supp. at 370-78.
Transcript of Status Call, June 11, 1982, at 9-14.

* Motion of Defendant Ciuzio to Suppress Evidence of
January 8, 1980 Meeting Between FBI Agent Amoroso and
Richard Kelly, United States v. Ciuzio & Weisz, No. 80-00340
(D.D.C. filed July 9, 1982), RI 322; Motion of Defendant
Ciuzio to Dismiss Count Two of the Indictment (Aiding and
Abetting), United States v. Ciuzio & Weisz, No. 80-003840
(D.D.C. filed July 2, 1982), RI 310. See note 104 supra.

1#T Motions Tr. at 6. Tr. at 658.
1 Brief for Defendant Ciuzio at 22-28, 54-58.
1 Id. at 59-67.

57a

of Ginsburg, J.). See Hampton v. United States, 425
U.S. 484, 495 n.7 (1976) (Powell, J., concurring) ; United
States v. Jannotti, 673 F.2d 578, 607 (3d Cir.) (en banc),
cert, denied, 457 U.S. 1106 (1982). Since our review of
the record reveals no significant distinctions between the
FBI’s conduct with respect to Ciuzio and its conduct,
found constitutionally unobjectionable, with respect to
Kelly, we reject Ciuzio’s due process arguments.

VI. CONCLUSION

Ciuzio and Weisz have raised a number of issues on ap-
peal. We have carefully considered all of these claims and
found all to be without merit. Accordingly, we affirm the
judgments of conviction entered by the district court.’”

Judgment accordingly.

NEXIS LEXIS

SHEPARD‘'S CITATIONS - 1 OF 2 DOCUMENTS
Copyright (c) 1983 McGraw-Hill, Inc.

CITATIONS TO: 439 F.2d 642

SERIES: SHEPARD'S FEDERAL CITATIONS

DIVISION: FEDERAL REPORTER, 2d SERIES

COVERAGE: Shepard's 1969-1982 Bound Supplement Through 11/83 Supplement.

ANALYSIS CITING REFERENCE PARA NOTES
( parallel citation (142 App.D.C. 132)

S$ Same case 448 F.2d 1182

S$ Same case 331 F.Supp. 927

91 F.T.C. 992
12 M.J. 1014
12 M.J. 1020

14 M.J. 705

15 A.J. 755

Cir. D.C.

445 F.2d 665
@ explained 445 F.2d 714 2
d distinguished 445 F.2d 715 3
445 F.2d 715 13
455 F.2d 1332 13

(c) 1983 McGraw-Hill, Inc., 439 F.2d 642

ANALYSIS CITING REF ERENCE PARA NOTES
Cir. D.C.
j dissenting opinion 455 F.2d 1337 16
463 F.2d 893 16
464 F.20 830 3
464 F:,20 831 12
464 F.2d 831 14
@ explained 471 F.2d 1062 14
e explained 471 F.2¢0 1065 12
e@ explained 471 F.2d 1065 13
472 F.2d 1267 6
j dissenting opinion 472 F.2d 1345 2
f followed 476 F.20 1172 17
476 F.2d 660
485 F.20 964 1
qd distinguished 495 F.2d 112 +
} dissenting opini 495 Ftd 114 ‘4
s ing opinion °
, isi 498 F.2d 1005 13
j dissenting opinion 498 F.2d 1011 bs
499 F.2d 1007

(e) 1983 McGee
We He rr Ag? Ped ariete * Cas

59a

ANALYSIS CITING REFERENCE PARA NOTES
Cir. D.C.

gd distinguished 499 F.2d 1008 13

qd distinguished 499 F.2d 1008 14

qd distinguished 499 F.2d 1008 15

qd distinguished 499 F.2d 1008 16
499 F.2d 1046 3
499 F.2d 1048 13
499 F.2d 1048 14
499 F.2d 1048 16
506 F.2d 222 3
507 F.2d 1130 3
509 F.2d 323 11
509 F.2d 342 10

e explained 510 F.2d 740 17
511 F.2d 803 6
511 F.2d 803 7
511 F.2d 803 8
516 F.2d 668 11
516 F.2d 668 12
516 F.2d 668 13

(c) 1983 McGraw-Hill, Inc., 439 F.2d 642

ANALYSIS CITING REFERENCE PARA NOTES
Cir. D.C. 2

516 F.2d 668 16

524 F.2d 422 12

524 F.2d0 422 15 )
f followed 524 F.2d 423 13 ;
f followed 524 F.2d 424 16 ;
f followed 524 F.20 429 2 ;
f followed 524 F.2d 429 3 s
f followed 524 F.2d 434 14 4
ha harsonized 539 F.2d 746 13
ha hareonized 539 F.2d 747 12

543 F.2d 1352 10

$43 F.20 1353 9

559 F.20 73 3
@ explained 567 F.2¢ 1275 16

606 F.2a 1154 10

606 F.2d 1154 17
f fallowed 617 F.20 641 13
* followed 617 F.2a@ 642 14

707 F.20 1472

(c) 1983 McGraw-Hill, Inc., 439 F.20 642

60a
ANALYSIS CITING REFERENCE PARA NOTES
Cir. D.C.
ad distinguished 376 F.Supp. 36 10
389 F.Supp. 97 8
389 F.Supp. 97 9
389 F.Supp. 97 10
459 F.Supp. 615 17
461 F.Supp. 1332 10
Cir. 1
568 F.2d 227
608 F.20 894 17
417 F.Supp. 1344 12
f followed 417 F.Supp. 1345 “
417 F.Supp. 1345 10
417 F.Supp. 1345 13
417 F.Supp. 1345 17
417 F.Supp. 1348 6
Cir. 2
451 F.20 1170
d distinguished 526 F.2d 1326 17
576 F.20 449 . ;

(¢) 1983 McGraw-Hill, Inc., 439 F.2d 642

ANALYSIS CITING REFERENCE PARA NOTES
Cir. 2
576 F.2d 450 15
600 F.2d 1032 10
633 F.2d 1020 17
370 F.Supp. 517 7
Cir. 3
@ distinguished 570 F.2d 1165 12
601 F.2d 1263 12
@ distinguished 342 F.Supp. 941 ri |
354 F.Supp. 1073 12 |
411 F.Supp. 1054 12
@ distinguished 422 F.Supp. 164 |
56 F.R.D. 369 . |
Cir. =
541 F.2d 450 10
$42 F.2a 1241 10 |
Cir. §
474 F.2d 1182 17
462 F.20 220

(ce) 1983 McGraw-Hill, Inc., 439 F.20 642

6la

ANALYSIS CITING REFERENCE PARA NOTES
| Cir. 5
) 495 F.2d 436 .
@ explained 502 F.2d 1044 17
d distinguished 506 F.2d 409 “
536 F.2d 78 1
536 F.2d 78 17
536 F.2d 1029 16
556 F.2d 1272 10
556 F.2d 1273 9
576 F.2d 631 3
576 F.2d 631 ~
576 F.2d 632 10
621 F.2d 187 10
621 F.2d 187 10
687 F.2d 95 12
668 F.2d 986
692 F.2d 358 3
692 F.2d 358 “
697 F.2d 606
335 F.Supp. 355 5
(c) 1983 McGraw-Hill, Inc., 439 F.2d 642
ANALYSIS CITING REFERENCE PARA NOTES
Cir. 9
f followed 538 F.2d 268 8
539 F.2d 21 17
f followed 543 F.2d 1252 14
f followed 543 F.2d 1252 16
5

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0985%3A1. Public record. Not legal advice.