UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
September 13, 1983
UNITED STATES OF AMERICA
STANLEY WEISZ, APPELLANT; UNITED STATES OF AMERICA
EUGENE ROBERT CIUZIO 1983.CDC.238
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Cert. Denied, February 21, 1984.
Appeals from the United States District Court for the District of Columbia.
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.
DECISION OF THE COURT DELIVERED BY THE HONORABLE 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 Bureau of Investigation's undercover investigation of government corruption commonly known as "Abscam." Ciuzio, 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 representative 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, promised 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 *fn1 were charged with conspiracy to commit bribery, in violation of 18 U.S.C. § 371 (1976), aiding and abetting bribery, in violation of 18 U.S.C. § 2 (1976), and interstate 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 evidence 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). *fn2 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. Ciuzio 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. 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. *fn3 The name given to this investigation was "Abscam," a name derived from Abdul Enterprises, a fictitious, FBI-created organization which ostensibly represented two Arabs of considerable wealth interested in financing business ventures in the United States. *fn4 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. *fn5 Weinberg and a number of FBI agents "held" various positions in Abdul Enterprises. Beginning in January 1979, FBI special agent Anthony Amoroso assumed the role of president of Abdul Enterprises. *fn6
In the latter part of 1978 Abdul Enterprises was approached by two businessmen, William Rosenberg and William Eden, concerning the possibility of financing certain equipment to be leased to the City of Camden, New Jersey. To further that transaction, Eden and Rosenberg introduced the representatives of Abdul Enterprises 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. *fn7
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." *fn8 Thereafter, on August 22, 1979, Errichetti introduced the Abscam operatives to United States Congressman Michael Myers who accepted $50,000 in exchange for his promise to assist the wealthy Arabs. *fn9 Thus was introduced the "asylum scenario" -- whereby several members of Congress were paid bribes to ensure that they would introduce private immigration legislation on behalf of the wealthy Arabs if and when necessary -- which ultimately 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 resident status and that the congressmen, as well as the individuals recruiting the congressmen, would be paid for their assistance. *fn10 In October 1979 Rosenberg related the proposal to his business associate, accountant Stanley Weisz. *fn11 Rosenberg told Weisz that the Arabs were concerned 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. *fn12 Weisz responded that he did not know any congressmen. *fn13
On November 20, 1979, Weisz, while on vacation in Boynton Beach, Florida, met with his longtime business associate, Eugene Ciuzio. *fn14 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." *fn15 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 contact Rosenberg and, if the Arabs were still interested, have Rosenberg call Ciuzio. *fn16 A few days later Ciuzio called Weisz in Boynton Beach and told him that the Congressman was interested in helping the Arabs. *fn17
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. *fn18 Rosenberg checked with Amoroso and Weinberg, 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. *fn19 Weisz gave Rosenberg 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 congressmen 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. *fn20 Meanwhile, Rosenberg called Weinberg and gave him Ciuzio's name and telephone number, explaining that Ciuzio was "the connection to the Congressman" and that Weinberg would have to "deal through" Ciuzio. *fn21
As a result of these efforts, Amoroso and Weinberg met with Ciuzio on December 19, 1979, in Hollywood, Florida, to discuss the transaction. Amoroso explained the assistance 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. *fn22
Weinberg indicated that the Arabs were willing to pay a total of $250,000, with $100,000 going to the Congressman, 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. *fn23 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. *fn24
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. *fn25 Ciuzio indicated that he understood the nature of the proposal, *fn26 revealing that Weisz had outlined it for him over lunch in Florida:
I met Stanley [Weisz] at Boynton 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. *fn27
Ciuzio also indicated that in a later conversation Weisz had given him the $250,000 figure and that they had arrived at a split of $100,000 for Kelly because "that['s] what [Kelly] needs to straighten his whole life out." *fn28 Ciuzio claimed to have explained the proposal to Kelly and that Kelly had left the arrangements to him. *fn29
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. *fn30 Amoroso assured him that a private meeting between Amoroso and Kelly would protect the Congressman, and that the wealthy Arabs would invest in Kelly's district to provide an explanation for Kelly's assistance. *fn31 Ciuzio agreed to "lay out the story" for Kelly, but only if he received "clearance" from Weisz because it was "his package." *fn32 Amoroso and Weinberg suggested that Ciuzio set up the meeting for January 8 or 9, 1980, at Abdul Enterprises' Washington, D.C., townhouse. *fn33
On December 20, 1979, Weinberg called Ciuzio and inquired 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. *fn34 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. *fn35
Ciuzio also told Weinberg that he had discussed the deal with Weisz and reiterated that he and Weisz did not like the idea of the money being paid directly to the Congressman. Ciuzio again suggested that Weisz handle "all the money." *fn36 Weinberg insisted that Kelly be directly involved in the transaction, but indicated that
all he [Amoroso] wants the Congressman [to do] is to tell him what he's gonna do for him for the money. *fn37
"After that," Weinberg asserted, "I don't give a damn who comes and picks money up or what you do with it." *fn38 Ciuzio agreed, but requested that they use "the right script, nice and soft." *fn39
On January 8, 1980, Weisz and Rosenberg flew together 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 Marriott 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. *fn40
2. Abscam's Payoff to Kelly
Shortly after 10:00 p.m. on January 8, 1980, Ciuzio, Kelly, Rosenberg, and Weisz arrived at Abdul Enterprises' townhouse to meet with Amoroso and Weinberg. Initially Weinberg met with Ciuzio, who vigorously sought to dissuade Amoroso and Weinberg from attempting to bribe Kelly directly. *fn41 The two ultimately agreed that Kelly would acknowledge that the money was in exchange for his agreement to assist the Arabs, but that Ciuzio would actually take the money from the meeting:
WEINBERG: You can be in with him, all right?
CIUZIO: Well I think I should be here to, ahh steer the 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 answers too.
WEINBERG: All right, so . . .
CIUZIO: I rehearsed with him. *fn42
After this conversation Kelly and Amoroso met privately. Amoroso explained the Arabs' immigration difficulties 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 protect them from pressure. *fn43 Kelly's response revealed that he was already aware of the purpose for the investments:
AMOROSO: Now I realize that ahh there's a possibility that ahh if, if you were to introduce somethin like this, that ahh, people would ask, well why is he doing it, ya know, well what's the reason, now . . .
KELLY: I've got the reason.
AMOROSO: Ok, what . . . would that be . . . investing?
KELLY: Sure. *fn44
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 meantime, whatever these guys are doing is all right, but I got no part in that. . . . In other words, your arrangement with these people is . . . all fine . . . . You have my assurance that what you have told me here, sounds like a good thing and . . . I will . . . stick by these people. *fn45
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 privately 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. *fn46
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: You and I gotta . . . learn to talk to each other.
AMOROSO: Well I know . . .
KELLY: Don't stumble around, jump in there . . .
AMOROSO: Jump in there and give it to you?
AMOROSO: Ok. Well I was under the impression . . . when this thing was set up . . . that I was gonna give you something . . . tonight. . . .
AMOROSO: Ok, and that the rest was gonna come . . .
AMOROSO: When you introduce that.
KELLY: That's right.
AMOROSO: Ok, is that, is that still . . .
KELLY: Yeah. Here's . . . what the thing is. Umm ahh just simply deal with Gino [Ciuzio] about it.
AMOROSO: Ok. You want me to give him the money . . . here?
KELLY: Sure. *fn47
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 confused:
I understood that what you were talking about was . . . all there was as far as Tony [sic, should be Ciuzio] was concerned and so as far as I'm concerned, he takes that . . . . But I see I didn't know . . . about this other arrangement. . . . It's . . . all right but I didn't know about that. So let's talk about it some. *fn48
Amoroso explained that he thought that giving the money directly to Kelly would avoid witnesses, thus protecting him. Kelly agreed:
AMOROSO: I thought that the best way of doing it was . . . a one on one between you and I. Now to me that sounds like . . . if you're looking for security . . . the best way of doing it.
KELLY: I think so too. *fn49
Amoroso then gave Kelly $25,000 in cash and Kelly stuffed the money into the pockets of his suit. *fn50
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. *fn51 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. *fn52
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. *fn53
Weisz called Weinberg the next day and told him that the balance of the $250,000 should be split "fifty, fifty, fifty, seventy-five." *fn54 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 o' that?
WEINBERG: Send a hundred and . . . twenty-five to Gino then.
WEINBERG: And he'll take care o' Kelly.
WEISZ: That's the best way. *fn55
Weisz agreed to meet Amoroso and Weinberg the next day to pick up his share of the money. *fn56
On February 2, 1980, Weisz, accompanied by Rosenberg, drove to the Hilton Hotel at New York's Kennedy Airport to meet with Amoroso and Weinberg. *fn57 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?" *fn58 Weisz was agreeable to bringing additional people to the Abscam operatives:
WEISZ: There's other ones, yes.
AMOROSO: All right. How about the same arrangement?
WEISZ: I don't see why not.
WEISZ: Seems satisfactory.
WEISZ: If you wanna do exactly the same thing, I'll get you somebody else to do exactly the same thing. *fn59
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?
WEISZ: Ok . . . I see . . . . As long as he agrees . . . that's perfectly okay. I couldn't care one way or the other. *fn60
At that point, Weisz received $50,000 and placed it in an attache case he had brought for that purpose. *fn61
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 bringing people together to be corrupted. *fn62
Thereafter Weisz called his attorney and, after he arrived, the agents retrieved the $50,000 from Weisz's attache case and allowed Weisz to leave. *fn63 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 second 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. *fn64
Ciuzio asserts that the emphasized language "unequivocally" notified the district court that he wished to proceed pro se. Accordingly, since the district court interpreted Ciuzio's motion as a request to substitute an attorney 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 constitutional right of self-representation established by the Supreme Court in Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975). *fn65
We cannot agree with Ciuzio's assertion that his motion "unequivocally" requested that he be permitted to represent himself. Rather, considering the motion as a whole, as well as the contemporaneously filed motion for substitution of counsel, submitted on behalf of Ciuzio by Karl Pilger, *fn66 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-representation, United States v. Bailey, 219 U.S. App. D.C. 67, 675 F.2d 1292, 1300 (D.C. Cir.), cert. denied, 459 U.S. 853, 103 S. Ct. 119, 74 L. Ed. 2d 104 (1982), we find no constitutional error on the part of the district court. *fn67
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, *fn68 the Supreme Court has only recently held that the Sixth Amendment provides defendants with the right to dispense with the services of counsel and represent themselves at trial. *fn69 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:
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 832. 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. Id. at 835 (citing Johnson v. Zerbst, 304 U.S. 458, 464-65, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938)).
Because the exercise of the right of self-representation necessarily involves a waiver of the preeminent right to the assistance of counsel, *fn70 the stringent limitations established by the Supreme Court for waiver of the right to counsel necessarily define the requirements for exercise 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, 51 L. Ed. 2d 424, 97 S. Ct. 1232 (1977). Since a defendant must act affirmatively to relinquish 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, 50 L. Ed. 2d 293, 97 S. Ct. 327 (1976).
Similarly, because the Supreme Court has enjoined courts to "indulge in every reasonable presumption against waiver" of the right to counsel, Brewer v. Williams (supra) 430 U.S. at 404, a defendant must " articulately and unmistakably assert his desire to avail himself of the constitutional right to self-representation . . . ." United States v. Bailey (supra) 675 F.2d at 1300 (emphasis added). *fn71 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.
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. Id. 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 counsel, *fn72 the right of self-representation is waived unless defendants articulately and unmistakably demand to proceed 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 contained 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. *fn73
The district court treated Ciuzio's motion as one requesting it to replace Karl Pilger with an alternative assigned counsel of Ciuzio's choosing, and denied the motion. *fn74 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 confidence in Pilger and recited in considerable detail the reasons for his lack of confidence. *fn75 The motion recommended appointment of Salvagio, indicating that he was qualified and willing to serve as Ciuzio's counsel, provided that the district court authorized payment of attorneys' fees in excess of the maximum allowed by statute. *fn76 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 defendant Assigned Counsel of his own Choice . . . . *fn77
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 substitute Salvagio for Pilger. Certainly Ciuzio's request "to represent himself with assigned counsel . . . other than KARL PILGER," *fn78 when made in the context of the described motion, fell far short of an unmistakable assertion that he wished to dispense with the services of counsel 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 memorandum in support of his request. *fn79 In that memorandum, Ciuzio cited Faretta and stated correctly that
the right to represent oneself in conducting his own defense in a criminal case is established . . . by both the Sixth Amendment . . . as well as statute. *fn80
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 proceed pro se." *fn81 Concluding that, under the circumstances, it had "no alternative," the district court granted Ciuzio's request to represent himself. *fn82
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-representation. 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 proceed pro se. *fn83
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. *fn84 This fact suggests 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. *fn85 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 substitute appointed counsel. Likewise, the district court could look to the motion for substitution of counsel filed by Pilger on behalf of Ciuzio a mere three days prior to Ciuzio's motion *fn86 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 substitute Salvagio as Ciuzio's appointed counsel, and gave absolutely no indication that Ciuzio had any interest in representing himself. *fn87
We therefore conclude that the record in this case overwhelmingly supports the district court's reading of Ciuzio's motion as a request for substitution of counsel. That interpretation results from a natural and reasonable 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 characterized as an "unequivocal" assertion of he right of self-representation. *fn88 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-representation. 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 Weinberg at the Hilton Hotel, he was met by two FBI agents, Raleigh and Melore, who requested that Weisz accompany them to another room in the hotel. *fn89 In a statement allegedly 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. *fn90
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 custodial interrogation. *fn91 Edwards v. Arizona, 451 U.S. 477, 482-85, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981); Miranda v. Arizona, 384 U.S. 436, 444-45, 473-76, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Weisz renews this objection on appeal, asserting that the district court committed reversible error by permitting Raleigh to testify to Weisz' statement. *fn92 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. *fn93 Edwards v. Arizona (supra) 451 U.S. at 482; North Carolina v. Butler, 441 U.S. 369, 373, 60 L. Ed. 2d 286, 99 S. Ct. 1755 (1979); Lego v. Twomey, 404 U.S. 477, 487-89, 30 L. Ed. 2d 618, 92 S. Ct. 619 (1972); United States v. Hackley, 204 U.S. App. D.C. 221, 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, 100 S. Ct. 117, 124, 62 L. Ed. 2d 76 (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 determine 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 erroneous. United States v. Saimiento-Rozo, 676 F.2d 146, 150 (5th Cir. 1982); United States v. Hinckley, 217 U.S. App. D.C. 262, 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 document, the agents demanded that he sign it; Weisz refused:
I said, no way. I won't sign it. I won't sign anything without my lawyer, and I want my lawyer. *fn94
Despite his clear request for his attorney, the agents persisted in questioning him regarding his role in Kelly's introduction to Amoroso and Weinberg. *fn95 On the other hand, according to the FBI agents, when Weisz arrived at the second room he was given an "Advice of Rights" form, which he read, and was asked to sign the waiver at the bottom of the form. Weisz responded that he understood his "Miranda" rights and that he was willing to answer the agents' questions, but that he preferred not to sign the waiver. *fn96 The agents then proceeded to question Weisz for approximately twenty minutes, during 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. *fn97
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 assistance of counsel prior to questioning. *fn98 The agents' version was corroborated by handwritten notes taken by both agents during the questioning of Weisz. *fn99 On this record we cannot say that it was clearly erroneous for the district court to credit the agents' version of the questioning over that offered by Weisz. *fn100
Having so resolved this crucial factual dispute, the district 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; "an express written . . . statement of waiver of . . . the right to counsel . . . is not inevitably either necessary or sufficient to establish waiver." North Carolina v. Butler (supra) 441 U.S. at 373. Accord United States v. Stewart, 585 F.2d 799, 800 (5th Cir. 1978) (per curiam), cert. denied, 441 U.S. 933, 60 L. Ed. 2d 661, 99 S. Ct. 2054 (1979); United States v. Cooper, 163 U.S. App. D.C. 55, 499 F.2d 1060, 1062-63 (D.C. Cir. 1974). As we recognized several years ago,
it is . . . a common experience of life that in many circumstances persons are willing to convey information orally but are reluctant to put the same thing in writing.
United States v. Cooper (supra) 499 F.2d at 1062. *fn101 Here Weisz, a mature, well-educated accountant, *fn102 having read an "Advice of Rights" form, unequivocally stated that he understood his Miranda rights and expressly 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 questioning 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' Washington, D.C., townhouse. They discussed the assistance 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 agreeing to help the Arabs with their immigration difficulties, Kelly accepted $25,000 from Amoroso and stuffed the cash into the pockets of his suit. *fn103 Unbeknownst to Kelly and the others, the FBI recorded the meeting on video tape.
Prior to trial, Ciuzio and Weisz objected to the introduction of the FBI video tape of the meeting. Both contended that the "probative value [of the video tape was] substantially outweighed by the danger of unfair prejudice," 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. *fn104 Ciuzio objected to the playing of the entire video tape, *fn105 while Weisz sought principally to have the offensive "money stuffing" scene redacted from the tape. *fn106 The district court concluded that the video tape had considerable probative value, but was concerned that the money stuffing scene added nothing to the government's case. *fn107 Noting that "to 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." *fn108 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. *fn109
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 probative 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 committed to the sound discretion of the district court; its decision will not be disturbed on appeal except for grave abuse. United States v. Allen, 203 U.S. App. D.C. 17, 629 F.2d 51, 58 (D.C. Cir. 1980); United States v. Day, 192 U.S. App. D.C. 252, 591 F.2d 861, 878 (D.C. Cir. 1978); United States v. Wright, 160 U.S. App. D.C. 57, 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 meeting with Amoroso, including the money stuffing scene, cannot be gainsaid. The meeting provided direct evidence of Kelly's relationship with Ciuzio when, during the meeting, Kelly asked to talk to Ciuzio and later requested that Amoroso "deal with Gino [Ciuzio] about" Kelly's $25,000. *fn110 The video tape itself allowed the jury the unique opportunity to observe Kelly's demeanor as Amoroso explained and Kelly accepted the obviously corrupt proposal. Kelly registered no surprise or protest during Amoroso's discourse, but rather demonstrated familiarity with the proposal by revealing that he understood the purpose for the Arabs' investments in his district. *fn111 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. *fn112 These facts indicate that Kelly was already familiar with the proposal, i.e., that Ciuzio had explained the Arabs' proposal 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 abetting charge lodged against Ciuzio and Weisz. See United States v. Staten, 189 U.S. App. D.C. 100, 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 commit. 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 correctly 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, *fn113 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 persons associated with the Congressman guilty. *fn114 In at least one instance, a prospective juror responded positively and was excused for cause. *fn115 We have previously recognized the value of voir dire as a means to identify prospective jurors who might be prejudiced against a defendant by the nature of evidence to be presented at trial, United States v. Chapin, 169 U.S. App. D.C. 303, 515 F.2d 1274, 1284-85 (D.C. Cir.), cert. denied, 423 U.S. 1015, 46 L. Ed. 2d 387, 96 S. Ct. 449 (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. Accordingly, 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. *fn116
C. Statements of Co-Conspirators
Throughout the Abscam investigation, the FBI recorded numerous telephone calls and meetings involving, inter alia, Ciuzio, Kelly and Weisz. These audio and video recordings provided the bulk of the evidence against Ciuzio and Weisz. *fn117 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 participation 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). *fn118 The district court admitted the statements, finding that the government had demonstrated "some community of purpose" among Ciuzio, Kelly, Rosenberg and Weisz, and had no problem showing what that purpose was -- "the community of purpose was to bribe a Congressman." *fn119
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 alleged co-conspirators were admissible against him under Rule 801(d)(2)only if the district court found substantial independent evidence of a conspiracy, i.e., an unlawful combination. Since, according to Ciuzio, the district 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. *fn120 We cannot agree that the questioned evidence was improperly admitted.
Fed. R. Evid. 801(d)(2)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:
When any number of persons associate themselves together in the prosecution of a common plan or enterprise, 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, 62 L. Ed. 260, 38 S. Ct. 65 (1917). See United States v. Jackson, 201 U.S. App. D.C. 212, 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. denied, 429 U.S. 1104, 51 L. Ed. 2d 555, 97 S. Ct. 1132 (1977).
Although Rule 801(d)(2)refers to "conspiracy" and statements of a "coconspirator," its use of those terms is not intended to limit applicability of the doctrine to unlawful combinations; "the Rule is meant to carry forward the universally accepted doctrine that a joint venturer is considered as a coconspirator for the purpose of this Rule even though no conspiracy has been charged." Fed. R. Evid. 801(d)(2)Senate committee note (emphasis added). United States v. Trowery (supra) 542 F.2d at 626. Likewise, although the cases state that the doctrine is available only if "there is substantial evidence, independent of [the statements at issue] that . . . a conspiracy existed," United States v. Gantt, 199 U.S. App. D.C. 249, 617 F.2d 831, 844 (D.C. Cir. 1980),121 the term "conspiracy," when used in this context, does not, as Ciuzio suggests, refer solely to unlawful combinations:
It is not necessary to show by independent evidence that the combination was criminal or otherwise 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 combination -- is simply not in accord with the law of this Circuit.122
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 toward an unlawful goal when it concluded that the government had no problem showing that their "community of purpose was to bribe a Congressman."123 There is certainly substantial evidence in the record, in addition to statements by Ciuzio's co-conspirators, to support the district 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 because "that['s] what he needs to straighten his whole life out."124 Later, stating that he was "obligated to protect" Kelly because "once you give em money ya . . . compromise him," Ciuzio agreed to "lay out the story" for Kelly after he received "clearance" from Weisz.125 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 arrangements to him.126 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 discuss the transaction.127 The next day, Ciuzio told Weinberg that he had, in fact, spoken with Kelly and that Kelly was available for a meeting on January 8, 1980.128 Ciuzio, Kelly, Rosenberg and Weisz subsequently arrived together at Abdul Enterprises' townhouse for the meeting with Amoroso and Weinberg.129 That Ciuzio wanted to use an "outside call"130 to discuss the Arabs' proposal with Kelly is strong evidence that Ciuzio was concerned that the subject matter of their conversation not be overheard 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 payment 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), the out-of-court statements of Kelly and Weisz were admissible 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. Furthermore, 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.131 Our review of the record reveals no error on the part of the district court in admitting these statements.132
D. Failure to Record Conversations
One of the many noteworthy aspects of the Abscam investigation 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 investigation. Weinberg was instructed to record all of his Abscam-related telephone conversations and, insofar as was possible, meetings were arranged to be held in locations where the FBI could video tape the proceedings.133 On a few occasions, however, Weinberg and the FBI did not record significant conversations with targets of the Abscam investigation.134
Weisz now contends that the FBI's failure to record or otherwise memorialize all conversations during the Abscam investigation deprived him of a fair trial and violated principles of due process. Weisz notes that no recording was made of his December 21, 1979 telephone conversation with Weinberg135 or of his February 2, 1980 questioning by the FBI.136 Furthermore, no FBI Form 302 was prepared memorializing the substance of his conversation with Weinberg.137 Relying on our seminal decision in United States v. Bryant, 142 U.S. App. D.C. 132, 439 F.2d 642 (D.C. Cir. 1971), Weisz asserts that the FBI's failure to "preserve" 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 requiring government preservation and production at trial of notes, tapes, and other evidence created during an investigation is inapposite.138 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 evidence at trial." Id. at 645-47. Thus we were required to consider
the legal consequences of intentional non-preservation by investigative 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 criminal 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 . . . . Before 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 obligated to create documentary evidence of its conversations with Weisz. The clear thrust of that decision is to require the government to preserve discoverable evidence once such evidence is created or uncovered by its investigative activities. But a conversation is not "discoverable," at least in the sense that that term is generally used in the adversary process; it is only such notes, memoranda, and recordings of the conversation as may be prepared by the government that are discoverable.139 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.140
This interpretation of Bryant is supported by our subsequent decision in United States v. Butler, 163 U.S. App. D.C. 1, 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 undisturbed.
Id. at 1007-08 (emphasis added). Clearly, we concluded in Butler that Bryant imposed no obligation on the government 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 conclude that Bryant did not require the FBI to record its conversations with Weisz and thereby create the documentary evidence sought by Weisz.
Weisz also suggests that we must require the FBI to record all conversations with individuals under investigation because otherwise the
temptation for the government to record only conversations that are favorable to it becomes overwhelming.141
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."142 If the FBI were to record all conversations and then retain only "favorable" conversations, its conduct would fall squarely within the prohibition of Bryant.
In any event, we do not believe that judicial intervention is necessary to encourage the FBI to record, whenever possible, its conversations with persons under investigation. We think it obvious that the FBI, in its efforts to discover and develop evidence for use at criminal 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 investigation, where the FBI, under no compulsion from the judiciary, recorded virtually all of its hundreds of telephone calls and meetings with individuals under investigation.143 Under these circumstances there is simply 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 enforcement 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 insufficient evidence in the record to support convictions on the charges brought by the government. The district court summarily denied their motions.144 Ciuzio and Weisz renew these contentions on appeal, arguing principally 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 evidence 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, 226 U.S. App. D.C. 422, 702 F.2d 1159, 1162-63 (D.C. Cir. 1983); United States v. Reese, 183 U.S. App. D.C. 1, 561 F.2d 894, 898 (D.C. Cir. 1977); Curley v. United States, 81 U.S. App. D.C. 389, 160 F.2d 229, 232-33 (D.C. Cir.), cert. denied, 331 U.S. 837, 91 L. Ed. 1850, 67 S. Ct. 1511 (1947). It is not necessary that the "evidence foreclose every conceivable premise inconsistent with guilt" because
if 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, 173 U.S. App. D.C. 54, 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.
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 contended that the evidence demonstrated that he never intended 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.145 Although there is evidence in the record which supports Ciuzio's defense,146 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 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.147 Kelly also demonstrated that he had considered the Arabs' proposal prior to the meeting by discussing specific potential investments with Amoroso.148 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.149
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 congressional office, to discuss the transaction.150 The next day Ciuzio told Weinberg that Kelly had returned his call as requested and was available to meet Amoroso on January 8.151 Ciuzio's request that Kelly use an "outside call"152 to discuss the Arabs' proposal provides evidence from which the jury could infer that Ciuzio was concerned 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 corrupt 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 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."153 Ciuzio also indicated that he was "obligated to protect" Kelly because a direct payment of a bribe could "compromise him."154 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 explanation, 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.155
On this record, a reasonable juror could conclude beyond a reasonable doubt that Ciuzio knowingly participated 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 question of Ciuzio's guilt to the jury.
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, contended 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.156 Once again, our review of the record discloses evidence from which a juror could conclude that Weisz knew that the Arabs' proposal involved the payment 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.157 Ciuzio told Amoroso and Weinberg that Weisz had given him "the figures" and that he and Weisz had decided that Kelly should get $100,000.158 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.159 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 Arabs' proposal involved the payment of a bribe to Kelly.
Likewise, Weisz, in statements recorded by the FBI, revealed that he was aware that the transaction involved the payment of a bribe to Kelly. When asked by Weinberg how the $225,000 balance should be split, Weisz replied, "Its fifty, fifty, fifty, seventy-five;" Weisz also told Weinberg to give Kelly's share to Ciuzio, who would "take care" of Kelly.160 The next day, Weisz was surprised, but unconcerned, when he learned that Amoroso intended to deliver Kelly's $75,000 personally.161 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 received $25,000 of that bribe during his January 8 meeting with Amoroso.162
Finally, in his statement to the FBI on February 2, Weisz indicated that
he knew full well that he was instrumental in bringing people together to be corrupted.163
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 properly 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 principles of due process.164 Although the district court dismissed the indictment against Kelly on due process grounds and granted Ciuzio and Weisz a new trial, it denied Ciuzio's due process motion.165 Based on the district 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.166 The district court refused to dismiss the aiding and abetting charge and permitted the video tape to be played for the jury.167 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 grounds168 they are foreclosed by our recent decision reversing the district court and ordering reinstatement of the indictment and jury verdict against Kelly. United States v. Kelly, 228 U.S. App. D.C. 55, 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 outrageous that his prosecution would violate principles of due process,169 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 outrageous levels that would violate due process. Id. at 1473-74 (opinion of MacKinnon, J.); id. at 1476-77 (opinion of Ginsburg, J.). See Hampton v. United States, 425 U.S. 484, 495 n.7, 48 L. Ed. 2d 113, 96 S. Ct. 1646 (1976) (Powell, J., concurring); United States v. Jannotti, 673 F.2d 578, 607 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 73 L. Ed. 2d 1315, 102 S. Ct. 2906 (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. HOLDING
Ciuzio and Weisz have raised a number of issues on appeal. 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.170
APPELLATE PANEL: FOOTNOTES
* Sitting by designation pursuant to 28 U.S.C. § 294(d).