UNITED STATES v. KELLY 707 F.2d 1460 (D.C.Cir.1983)
Facts: The FBI initiated the Abscam operation to find Congressmen who may be enticed to accept bribes in exchange for favors. The FBI used middlemen, some of them with prior involvement in illegal activities, to spread the word that a group of Arabs were willing to pay to receive legal citizenship in America. The FBI then waited for Congressmen to take the bait. The defendant offered to help with the supposed immigration issues initially in return for investment in his district. Ultimately, the defendant took a cash bribe for his help.
Issue: whether the FBI's conduct in Abscam reached a "demonstrable level of outrageousness," while keeping in mind the difficulties inherent in detecting corrupt public officials
Rule:
Due process principles may bar a prosecution if law enforcement's conduct is excessively outrageous. According to United States v. Russell (1973), law enforcement conduct must be so outrageous that it violates fundamental fairness. Justice Powell's concurring opinion in Hampton v. United States (1976) emphasized that police involvement in crime must reach a demonstrable level of outrageousness, especially difficult to prove in contraband offenses given that they are so difficult to detect in the absence of undercover Government involvement. [Law] [e]nforcement officials therefore must be allowed flexibility adequate to counter effectively such criminal activity. Hampton v. United States (1976).
Application:
In the Abscam operation, the FBI created a fictitious corporation representing wealthy Arabs, using elaborate props such as limousines, yachts, and lavish residences to make the scenario believable. The operation did not target specific individuals but waited to see who would engage in corrupt activities. The FBI's conduct involved offering bribes to public officials, including Kelly, who were willing to assist the fictitious Arabs with their immigration issues.
The district court found the FBI's conduct to be outrageous, barring Kelly's prosecution. However, the appellate court disagreed, referencing the Russell and Hampton cases where the Supreme Court allowed prosecutions despite government agents providing opportunities and means for committing crimes. The appellate court noted that the FBI merely provided an opportunity for crime, similar to undercover drug operations, and did not engage in coercion or brutality.
Specific actions challenged included the FBI's use of an admitted confidence man, Melvin Weinberg, and the failure to record all conversations. The court held that employing Weinberg was analogous to using convicted drug dealers in sting operations, which is permissible. The failure to memorialize every conversation did not constitute a due process violation as the critical conversations were recorded.
Kelly also contended that repeated bribe offers after an initial rejection constituted outrageous conduct. The court found no evidence of outright rejection; instead, Kelly's actions indicated participation in the corrupt scheme.
Conclusion: The appellate court concluded that the FBI's conduct in Abscam did not reach the level of outrageousness required to bar Kelly's prosecution under due process principles. The court reversed the district court's dismissal of the indictment and directed reinstatement of the indictment and the jury's verdict. The need to detect corrupt public officials and the complexities involved justified the FBI's undercover tactics, which were not fundamentally unfair or excessively outrageous.
Concurrence. The concurring opinion did not believe the defendant was not coerced by the threat of physical or psychological pain, so they would reverse the lower decision as well. But, the concurring opinion argued that the majority oversimplified the facts of the operation. They viewed the operation as dangling too great of a temptation to an otherwise lawful defendant.
Notes:
"A successful due process defense must be predicated on intolerable government conduct which goes beyond that necessary to sustain an entrapment defense." United States v. Jannotti.
The statement means that for a due process defense to be successful in barring a prosecution, the government's conduct must be extremely egregious—so outrageous and intolerable—that it surpasses the threshold required to establish an entrapment defense.
Entrapment Defense
An entrapment defense is applicable when law enforcement agents induce a person to commit a crime that they would not have otherwise committed. The focus is on whether the defendant was predisposed to commit the crime and whether the government's actions were the primary cause of the criminal behavior.
Due Process Defense
A due process defense, on the other hand, challenges the fundamental fairness of the government's conduct. It argues that the government's actions were so outrageous and shocking that allowing a prosecution to proceed would violate basic principles of justice and fairness, regardless of the defendant's predisposition.
"Intolerable Government Conduct"
This phrase indicates that the government's actions must be so extreme that they shock the conscience or offend a sense of justice. Examples could include coercion, brutality, or actions that create crime rather than merely detect it.
Beyond Entrapment
The standard for a due process defense is higher than for entrapment. While entrapment focuses on the defendant's lack of predisposition and the government's role in inducing the crime, a due process defense requires showing that the government's conduct was intolerably outrageous. This could mean actions that are more severe than merely offering an opportunity to commit a crime; it involves conduct that fundamentally undermines the integrity of the judicial process.
Application in United States v. Kelly
In United States v. Kelly, the court discussed the due process defense in the context of the FBI's conduct during the Abscam operation. The court concluded that the FBI's conduct did not reach the level of outrageousness required for a due process defense, even though the operation was elaborate and involved deceptive tactics. The court held that such tactics were necessary and justified given the difficulties in detecting corruption among public officials.
In summary, the statement underscores that a due process defense requires proving conduct by law enforcement that is extraordinarily and fundamentally unfair, going beyond what is needed to show entrapment.