US v. Buck, 84 Cr. 220-CSH

• Citation: 690 F. Supp. 1291
• Decision Date: 06 July 1988
• Docket Number: SSS 82 Cr. 312-CSH.,No. 84 Cr. 220-CSH,84 Cr. 220-CSH
• Parties: UNITED STATES of America, v. Marilyn BUCK, Defendant. UNITED STATES of America v. Mutulu SHAKUR, Defendant.
• Court: U.S. District Court — Southern District of New York

690 F. Supp. 1291

UNITED STATES of America, v. Marilyn BUCK, Defendant.

UNITED STATES of America v. Mutulu SHAKUR, Defendant.

Nos. 84 Cr. 220-CSH, SSS 82 Cr. 312-CSH.

United States District Court, S.D. New York.

July 6, 1988.

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for U.S.; Abraham D. Sofaer, Legal Advisor, Dept. of State, Michael J. Matheson, Deputy Legal Advisor, Dept. of State, Edward R. Cummings, Asst. Legal Advisor for Politico-Military Affairs, Dept. of State, W. Hays Parks, Chief, Intern. Law Branch, Office of the Judge Advocate General, Dept. of the Army.

Albert H. Dyson, Office of the General Counsel, Dept. of Defense, Chokwe Lumumba, Chairman, New Afrikan Peoples Organization, Brooklyn, N.Y., Nkechi Taifa-Caldwell, Minister of Justice, Republic of New Afrika, Washington, D.C., for Dr. Mutulu Shakur.

Lennox S. Hinds, Stevens, Hinds, & White, P.C., New York City, Permanent Representative to the United Nations for the Inter. Ass'n of Democratic Lawyers, for amicus curiae.

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

Defendant Mutulu Shakur moves to dismiss indictment SSS 82 Cr. 312 (CSH). He contends that the acts charged in the indictment are political acts which are not properly the subject of criminal prosecution. He further contends that under applicable treaties and international law he is a prisoner of war, and thus immune from prosecution for the acts charged in the indictment. Defendant Marilyn Buck joins the motion "as it applies to the conspiracy charged in indictment 84 Cr. 220 (CSH) and as it applies to, in particular, the break-out of Joanne Chesimard, also known as Assata Shakur." Trial Tr. at 10,178, March 22, 1988.

I.

When he was arraigned on the indictment in 1985, Shakur appealed orally to the "Geneva Conventions" and a "prisoner of war" status.

Thereafter, and on several occasions, Shakur's counsel stated an intention to move to dismiss the indictment under international law.

Counsel and Court busied themselves with various other motions, including motions to suppress evidence, bail applications, the proper structuring of the trial, and related matters.¹

On November 2, 1987, just before jury selection began, counsel for Shakur filed and served an affidavit and a memorandum of law in support of the present motion. The Court heard oral argument on November 25, 1987. On November 26 Shakur submitted a further written exposition of his position on certain questions raised at the oral argument.

The office of the United States Attorney for this district characterized Shakur's motion as frivolous, submitted no brief in opposition, and stood mute at oral argument, although expressing a willingness to respond to any questions the Court might have.

Having considered the submissions on behalf of Shakur, I issued a Memorandum Opinion and Order dated January 19, 1988 directing the United States Attorney to respond to certain questions.²

Upon receipt of that order, the United States Attorney's office forwarded it, together with Shakur's motion papers and the indictment, to the United States Department of State to seek the assistance of that agency in preparing a response.

The Department of State responded to Shakur's motion by recruiting a team of five attorneys from the Departments of State, the Army, and Defense, headed by Abraham D. Sofaer, the Legal Advisor to the Department of State. That team, taking advantage of a number of extensions of time the Court granted at the request of the United States Attorney, prepared a 36-page memorandum of authorities opposing the motion which the United States Attorney submitted as an exhibit to an affidavit dated March 23, 1988.

Shakur has served reply papers. Counsel for Buck have filed no affidavits or briefs.

For reasons stated below, I concluded that these motions presented no fact issues for jury determination. Accordingly I denied from the bench defendants' alternative request for jury instructions in these general areas. On May 11, 1988 the jury convicted both defendants on all counts. Sentencing is pending. This opinion addresses the merits of defendants' motions.

II.

Defendants' motions rest on their perception of the political situation faced by Americans of African ancestry and of the role of the Republic of New Afrika ("RNA") in responding to that situation. In brief, defendants view the RNA as a sovereign nation engaged in a war of liberation against the colonial forces of the United States government. The Fifth Circuit summarized that premise in a case involving a member of the Provisional Government of the Republic of New Afrika:

The RNA claims that it is an independent foreign nation composed of "citizens" descended from Africans who were at one time slaves in this country. It contends that the African slaves in America were converted into a free community by, successively, the Confiscation Acts of 1861 and 1862, the Emancipation Proclamation of January 1863, and the Thirteenth Amendment to the Constitution of the United States. It further insists that the citizenship of the slaves, upon being freed, reverted to that of their ancestors at the time they were brought to America. That means to the RNA that they resumed African citizenship and owed no allegiance to this country. The RNA contends that it, and not the United States, is sovereign over Mississippi, Louisiana, Alabama, Georgia, and South Carolina, because those are lands `upon which the Africans had lived in the majority traditionally and which they had worked and developed.' It says that it has asserted sovereignty over those lands ever since `the blacks occupying it took up arms against the authority of the United States and thus asserted their New African nation's claim to the land, and, briefly, to independence' when President Andrew Johnson issued proclamations in 1865-1866 giving that land back to its former owners. The RNA says that its sovereignty over the lands in the five named states has never ceased, and that the United States has merely operated there without right or authority. It claims that its efforts to regain that land have intensified since the `formal revival and organization' of the New African Government by proclamation on March 31, 1968.

United States v. James, 528 F.2d 999, 1005 (5th Cir.1976), rehearing denied 532 F.2d 1054, cert. denied 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1976).³

In support of their view of the sovereign status of the RNA, defendants have submitted an affidavit of counsel detailing some of the history of African peoples in North America, with particular emphasis on incidents of resistance to slavery and incidents of former slaves establishing self-governing communities throughout the southeastern United States. Defendants conclude from this history that people of African descent are and have been engaged in a struggle to assert their right to self determination. They see local, state and federal law enforcement agencies as their opponents in the struggle.

III.

Defendants argue that they are entitled to immunity from prosecution from the acts charged in the indictment because those acts are "political" in nature. They describe the indictment in these terms:

Defendants are accused of membership in an underground New Afrikan guerilla formation, called the "Family," or the Revolutionary Armed Task Force, which is apparently a unit of the Black Liberation Army. The Army unit involved has adopted armed struggle as a method to fight for the freedom of New Afrikans, and for the independence of New Afrika. The acts alleged arise from this Army unit's attacks on federally insured banks. These actions were designed to raise money for the New Afrikan Independence Movement, and complimentary sic objectives. The acts alleged also involve a military engagement designed to liberate a soldier of the Black Liberation Army, Assata Shakur.

Memorandum in Support at 40. Citing several cases which construe the political offense exception to extradition treaties, defendants argue by analogy that the offenses charged in the present indictments are political and are thus not properly subject to criminal prosecution. See Quinn v. Robinson, 783 F.2d 776 (9th Cir.1986); Eain v. Wilkes, 641 F.2d 504 (7th Cir.1981); In re Doherty, 599 F.Supp. 270 (S.D.N.Y. 1984).

To the extent defendants contend that politically motivated acts are immune from criminal prosecution, the cited cases provide them no direct support. The political offense exception to extradition treaties has a long and interesting history, see Quinn v. Robinson, supra, 783 F.2d at 792-803, and may arguably be applied to bar the extradition of people accused of politically motivated acts of violence, even when the victims of the politically motivated violence are innocent civilians. Quinn, at 802 n. 27. But see Eain v. Wilkes, supra, 641 F.2d at 520 (acts must be aimed at disruption of political structure, not social structure, to qualify for political offense exception). Nevertheless, no authority has yet held that politically motivated acts of violence are immune from criminal prosecution in the jurisdiction where they occurred.

In the case at bar, defendants seek to extend the political offense exception derived from extradition treaties to politically inspired acts of violence occurring within the jurisdiction of the prosecuting authority. Their argument is, in essence, an appeal to the independence of the judicial branch of government. Just as the independent extradition magistrate in Doherty frustrated the desire of the executive branch to extradite Doherty to the United Kingdom, so too, defendants argue, an independent trial judge should frustrate the government's desire to prosecute individuals for politically motivated domestic crimes.

I conclude that the analogy is false; and that so far-reaching an extension of the "political offense" concept is unwarranted.

First, it is important to note that extradition law has its own peculiar...