The opinion of the court was delivered by: BRYANT
MEMORANDUM ON DUE PROCESS AND OTHER POST TRIAL MOTIONS
Former Congressman Richard Kelly was found guilty of bribery, 18 U.S.C. § 201(c), conspiracy, 18 U.S.C. § 371, and violation of the Travel Act, 18 U.S.C. § 1952. Eugene Ciuzio and Stanley Weisz were found guilty of conspiracy, aiding and abetting, 18 U.S.C. § 2, and violating the Travel Act. All three defendants have made motions to dismiss their indictments because the government violated due process, for judgments of acquittal, and for a new trial. Ciuzio has also moved for a severance and a new trial. For the reasons that follow, the court is dismissing the indictment against Kelly and granting new trials to Ciuzio and Weisz.
"Abscam" is a code word used by the Federal Bureau of Investigation (FBI) to identify an undercover operation which was originally intended to uncover securities fraud and recover stolen art treasures, and ended up with FBI agents and a master criminal posing as representatives of Arab sheiks attempting to persuade Congressmen to take bribes in front of hidden video cameras. The Second Circuit characterized this latter phase as a plan of the Executive Branch of the government of the United States "to determine whether members of the Legislative Branch and others would commit bribery offenses if presented with the opportunity to do so."
In another Second Circuit case, Judge Kaufman observed that "Abscam indeed was an intricate artifice, a stratagem of convoluted ploys and schemes designed to test the faith of those in the high echelons of government who are the repositories of the public trust."
In yet another related case, the Third Circuit pointed out that "the basic plan evolved into (the) various subparts, each with its own cast of participants which were ultimately the subject of (prosecution)," and emphasized that it was focusing on the particular facts material to the case which it had under consideration.
Abscam has also been referred to by the government from time to time as a "sting operation." I suppose, in a general sense, all these descriptions apply. However, in order to make the reasons for the disposition of this case very clear, a little more detailed treatment of this final critical phase of Abscam and the precise manner in which it related to Kelly is necessary.
In 1977, FBI agents prevailed upon a federal judge to allow a swindler and con man to remain free on probation after conviction for mail fraud in exchange for a promise to cooperate with the Bureau in some of its endeavors against organized crime.
This convict, Melvin Weinberg, stated flatly that his motivation to work for the FBI was "that I could make some big money."
Shortly after the FBI intervention, Weinberg was hired on a monthly basis to be a principal participant in the earlier phase of Abscam, i.e., the securities and art aspects. In January 1979, shortly after Agent Amoroso took over as Weinberg's immediate supervisor, Amoroso recommended that Weinberg's pay be raised from $ 1,000 per month plus expenses to $ 3,000 per month plus expenses because, among other reasons, Amoroso was concerned that Weinberg would "try and con other people on the side" if his living habits were not kept up.
This regular income was supplemented by substantial bonuses from time to time. Meanwhile, the field agents and Weinberg were maintained on a living standard consistent with great wealth.
Not long thereafter some white collar crime was uncovered in the Immigration and Naturalization Service.
The record reflects that the last of the various "subparts" or "convoluted ploys," which ultimately resulted in the indictment of several Congressmen, was conceived-lock, stock, and barrel-by Weinberg and made its first appearance on July 14, 1979 in a conversation with George Katz, a defendant in another case.
Up until the time that the tape of this conversation was reviewed sometime within the following two weeks, apparently nobody in the FBI had entertained the notion of testing the virtue of legislators with the investment/immigration problem scenario.
This scenario was indeed "an intricate artifice." As Weinberg told Katz, the Arab sheiks, who had been investing in the United States, were afraid that there would come a time when they would have to flee their country because of internal problems, as did the Shah of Iran. To insure against any problems they may have with immigrating to the United States, Weinberg said the sheiks wanted to "sign up" as many Congressmen and other public officials as possible.
The Congressmen's commitment would be secured with promises of investment in their districts and payments of cash to them.
Apparently the FBI quickly approved the new phase of the operation, and Weinberg used his connections with other con men and criminals to spread the word that $ 25,000 would be paid to Congressmen and $ 50,000 would be paid to U. S. Senators for their help.
More money would be paid when the sheiks actually got into this country.
This money was in addition to the millions of dollars of legitimate investments which would be directed to the districts of helpful Congressmen.
The scheme affected Kelly in the following fashion. William Rosenberg, goaded on by Weinberg and Amoroso with promises of millions of dollars for various chores undertaken on behalf of the enterprise,
passed the word to, among others, Stanley Weisz. Sometime later, Weisz mentioned the general proposition to Gino Ciuzio who had become acquainted with Congressman Kelly in the fall of 1979.
After a series of phone calls, Rosenberg and Weisz put Ciuzio in contact with Weinberg and a meeting was arranged for Ciuzio, Weinberg, and Agent Amoroso (who used the alias Tony DeVito). At this meeting, on December 19, 1979, Ciuzio went to great lengths to make it appear that he had virtual control over the Congressman, indicating at the time that Kelly was dishonest and was already taking money and had various other weaknesses. He indicated that he had known and cultivated Kelly for about 21/2 years.
None of this was true. No attempt was made to verify it;
and there is no indication that Weinberg and Amoroso believed it.
This meeting amounted to a briefing for Ciuzio, who wanted to know the details of Weinberg's proposition. Ciuzio was filled in by Amoroso and Weinberg and instructed as to how to make his pitch to Kelly. Indeed, at one point during this briefing, Ciuzio said: "Whatever program you feed into me, I'll give it to him."
The program, of course, included the very attractive investment in the Congressman's district on the one hand, along with the proposal to buy his assistance in any immigration problem. Also during this briefing, Ciuzio sought to convince Weinberg and Amoroso that if they would just give him the money they would have nothing to worry about-"I'll take a bag of money and we are through with the whole thing."
The money, by the way, was no longer $ 25,000, but had been raised by Ciuzio to $ 250,000, or as he put it, "a quarter mill." To this proposition Weinberg quickly said: "That's agreeable."
Obviously, Weinberg was authorized to dangle any amount of money before the middlemen in order to accomplish their purpose.
Ciuzio then went to Kelly and apparently fed him the program he had been given. At the trial of the case, the uncontradicted testimony of both Kelly and Ciuzio was that when Ciuzio told Kelly that money was available for him, Kelly rejected the idea of a pay-off, but at the same time expressed interest in the legitimate bait, that is, the enormous investments which were proposed for his district.
Thus, the only evidence presented at trial shows that when the bribe was first offered to Kelly, by Ciuzio, it was rejected.
Ciuzio: Now, here's what I'm telling ya. He's a kid and I know he's ripe for the first big ... score. This a Congressman, ya understand? This ain't a ... hustler, cause we're hustlers. We're wise guys ... shake hands ... budabomb ... budabomb ... buda ... It don't mean nothin, ya know what I'm saying? Don't hand him no ... money, don't talk money, tell him what the problem is, how could ya help, he'll explain it ...
Weinberg: I don't know, ya gotta speak to him. That may be a problem, Gino. Why don't you ...
Ciuzio: Listen, let me tell ya what you're buying here, ok. You know this. Cause maybe this is his first shot in this role, all right? He ain't buying no ... Congressman. He's buying the vehicle to accomplish your package, ya follow? He ain't § ... let me tell ya somethin ...
Weinberg: Sit down a second and we can talk.
Ciuzio: Now let me explain it ta ya this way. Now that we're here, see, cause I make ... things happen. With a little miscommunication with the other two guys and you, you get nervous ya know, makin' a big deal. It's a big deal if it goes wrong.
Weinberg: Yeah, but you ... we gotta make sure ...
Ciuzio: You can't usurp the guy's position.
Weinberg: Ok, but you understand ...
Ciuzio: He just left, ya understand? ...
Weinberg: we're talking ... all right, we're talking about if he trusts you ...
Ciuzio: Who? The Congressman? ...
Weinberg: ... and if you if he trusts you, right? ...
Weinberg: Let Tony hand you the money in front of him. Long as we know he's getting money ...
Ciuzio: That's ok. But don't say hey, Congressman ... ya know what I mean? Ya can't make him a ... hood, ya know.
Weinberg: No, but he's gotta know that he's getting paid to do it, ya know the ...
Ciuzio: Maybe he's got the answer ...
Weinberg: But the guy ain't lilly white, ya know. God forbid he backs out.
Ciuzio: I'll vouch for the guy.
Weinberg: Yeah, but ... you remember ...
Ciuzio: Listen, listen to me ...
Weinberg: ... if somethin goes wrong, it's our jobs ...
Ciuzio: Listen to me, do you trust, ahh Bill?
Ciuzio: I mean he talks good ...