United States v. Terence George Kelly
28 Fed. R. Serv. 992, 888 F.2d 732, 106 A.L.R. Fed. 965 (1989)
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Rule of Law:
Mere association with criminals or knowledge of criminal activity, particularly for a criminal defense attorney, is insufficient to sustain a conspiracy conviction. The government must prove the defendant had a deliberate, knowing, and specific intent to join the conspiracy; an attorney's refusal to assist in a crime and advice against it cannot be construed as aiding and abetting.
Facts:
- Raul Restrepo, a drug trafficker, left three kilograms of cocaine with his associate, Cirilo Lazaro Figueroa. One kilogram was of poor quality, so Figueroa buried it.
- After Restrepo was arrested in a DEA sting involving the other two kilograms, Figueroa referred him to defense attorney Terence G. Kelly.
- Restrepo told his new attorney, Kelly, about the third kilogram held by Figueroa and asked Kelly to arrange for its sale to pay his legal fees.
- According to Restrepo, Kelly relayed a message from Figueroa stating the cocaine was not sellable and that Figueroa could not help financially due to police surveillance.
- Restrepo began cooperating with the DEA and, under their direction, made a series of recorded phone calls to Kelly, pressing him for help in retrieving the buried cocaine.
- In these calls and in a meeting with undercover DEA agents posing as Restrepo's associates, Kelly repeatedly refused to get involved, stated the situation was a 'time-bomb', and advised both Restrepo and Figueroa that transferring the cocaine was not worth the risk.
- Restrepo mailed a letter containing half a photograph to Figueroa, via Kelly's office, as a coded instruction for retrieving the drugs. Kelly gave the unopened letter to Figueroa but advised him to have nothing to do with Restrepo.
Procedural Posture:
- Terence G. Kelly was indicted along with seven others in the U.S. District Court for the Northern District of Georgia on charges of conspiracy to possess cocaine with intent to distribute and aiding and abetting possession with intent to distribute.
- Kelly requested and was granted a separate bench trial before a district court judge.
- The district court found Kelly guilty on both counts.
- Kelly filed post-trial motions for judgment of acquittal and for the judge to recuse himself from further proceedings, all of which were denied by the district court.
- The district court sentenced Kelly to five years' imprisonment.
- Kelly, as appellant, appealed his conviction to the U.S. Court of Appeals for the Eleventh Circuit, arguing insufficiency of the evidence among other claims.
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Issue:
Is the evidence sufficient to support an attorney's conviction for conspiracy and aiding and abetting possession of cocaine with intent to distribute, where the attorney knew of his client's possession but repeatedly refused to assist in the drug's transfer and consistently advised his clients against illegal activity?
Opinions:
Majority - Johnson, Circuit Judge
No. The evidence is insufficient to prove beyond a reasonable doubt that Kelly voluntarily participated in a conspiracy or aided and abetted the possession of cocaine. The court reasoned that as a criminal defense attorney, Kelly's association with criminals and knowledge of their activities are inherent to his profession and do not, by themselves, prove criminal intent. The government failed to show Kelly had a 'deliberate, knowing, and specific intent to join the conspiracy.' His actions, such as repeatedly refusing to assist Restrepo and the undercover agents and advising both clients against illegal conduct, directly contradict the government’s theory. The court rejected the government's 'Catch-22' argument that by obstructing the transfer of the cocaine, Kelly was criminally aiding and abetting its continued possession. The court also identified two other independent grounds for reversal: 1) the trial court's abuse of discretion in excluding testimony from Kelly about his understanding of his professional ethical duties, which was crucial to his defense regarding intent, and 2) the trial judge's abuse of discretion in failing to recuse himself after revealing a personal conflict that created an appearance of partiality.
Analysis:
This decision provides significant protection for criminal defense attorneys by reinforcing the high bar for proving criminal intent based on conduct that is intertwined with legitimate legal representation. It clarifies that knowledge of a client's ongoing crime and communications about it do not automatically make an attorney a co-conspirator. The court's explicit rejection of the government's 'Catch-22' theory is critical, as it prevents the act of counseling a client against a crime from being twisted into an accusation of aiding and abetting a different crime (e.g., continued possession). This precedent helps safeguard the attorney-client relationship and ensures lawyers can provide candid advice without fear of being prosecuted for attempting to prevent further illegality.
