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 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 . . .