U.S. v. Rosado

• Decision Date: 10 February 1984
• Docket Number: Nos. 251,387,s. 251
• Citation: 728 F.2d 89
• Parties: 14 Fed. R. Evid. Serv. 1799 UNITED STATES of America, Appellee, v. Julio ROSADO, Andres Rosado, Ricardo Romero, Steven Guerra, and Maria Cueto, Defendants-Appellants. to 390, Dockets 83-1213 to 83-1217.
• Court: U.S. Court of Appeals — Second Circuit

Page 89

728 F.2d 89

14 Fed. R. Evid. Serv. 1799

UNITED STATES of America, Appellee, v. Julio ROSADO, Andres Rosado, Ricardo Romero, Steven Guerra, and Maria Cueto, Defendants-Appellants.

Nos. 251, 387 to 390, Dockets 83-1213 to 83-1217.

United States Court of Appeals, Second Circuit.

Argued Oct. 12, 1983.

Decided Feb. 10, 1984.

Elizabeth M. Fink, Brooklyn, N.Y., for defendant-appellant Cueto.

Julio Rosado, for defendant-appellant Julio Rosado pro se.

Michael E. Deutsch, Chicago, Ill. (Margaret Ratner and Michael Ratner, New York City, on the brief for all appellants), for defendants-appellants Guerra, Romero, and Andres Rosado.

James D. Harmon, Jr., Asst. U.S. Atty., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., L. Kevin Sheridan and Charles E. Rose, Asst. U.S. Attys., Brooklyn, N.Y., on the brief), for appellee.

Before NEWMAN and DAVIS, ^* Circuit Judges. ^**

JON O. NEWMAN, Circuit Judge:

This appeal illustrates the hazards of permitting defendants in a criminal case to present evidence beyond what is relevant to disputing the elements of the offense charged or to establishing a lawful defense. Because the trial judge, in an effort to be solicitous of defense contentions, permitted evidence on issues inappropriate for jury consideration, we are now faced on appeal with the defendants' argument, among others, that their convictions should be reversed because of evidence introduced by the prosecution to rebut their own inadmissible evidence. The claim is raised on an appeal by Julio Rosado, Andres Rosado, Ricardo Romero, Steven Guerra, and Maria Cueto from judgments of the District Court for the Eastern District of New York (Charles P. Sifton, Judge) convicting them of criminal contempt of court and sentencing each appellant to three years' imprisonment. For reasons that follow, we affirm the judgments.

Facts

This litigation is the latest chapter in the Government's persistent efforts to obtain grand jury testimony from recalcitrant witnesses regarding the activities of the Fuerzas Armadas de Liberacion Nacional Puertorriquena (Armed Forces of Puerto Rican National Liberation, or "FALN"), a terrorist group that seeks independence for Puerto Rico. ¹ In 1977 appellants Cueto, Romero, and Andres and Julio Rosado were subpoenaed to appear before grand juries impaneled to investigate bombings attributed to the FALN. ² The Government sought appellants' testimony and (from some of them) fingerprints, palm prints, and voice and handwriting exemplars. ³ All four refused to appear before the grand jury. Each was incarcerated pursuant to a civil contempt adjudication. Romero and Andres and Julio Rosado were released at the end of the grand jury term, after serving periods of confinement ranging from four to ten months. Cueto was released prior to the expiration of the grand jury term, after ten months of incarceration, pursuant to the District Court's determination that the civil contempt sanction had lost its coercive character and become punitive. See In re Cueto, 443 F.Supp. 857 (S.D.N.Y.1978).

In 1981 a new grand jury was impaneled in the Eastern District of New York to investigate bombings attributed to the FALN, as well as the May 1979 escape of suspected FALN member William Morales, a convicted federal prisoner. In November 1981 the grand jury subpoenaed Andres and Julio Rosado, Guerra, and Romero; Cueto was subsequently subpoenaed. The District Court denied appellants' timely motion to quash the subpoena and directed their appearance before the grand jury. Appellants informed the District Judge that they would refuse to answer any questions. At the Government's request, the District Court deferred imposition of a civil contempt sanction. The prosecutor informed the Court that the United States Attorney had agreed to pursue mediation with the assistance of Episcopal Bishop Paul Moore and Robert Potter, counsel for the National Council of Churches, prior to requesting sanctions for appellants' contempt.

Nine months later, on September 24, 1982, after mediation proved fruitless, the Government obtained an indictment charging appellants with criminal contempt for refusing to give evidence, in violation of 18 U.S.C. Sec. 401(3) (1982). Shortly thereafter the Assistant Director-in-Charge of the F.B.I.'s New York Office issued a press release and held a news conference announcing appellants' arrest and calling them "the remaining unincarcerated leadership of the FALN."

On October 6, 1982, appellants moved to dismiss the indictment, alleging selective prosecution and prejudicial governmental misconduct, i.e., issuing the allegedly false and prejudicial F.B.I. statement. The District Court, in reserving decision on appellants' motion, noted that the indictment failed to specify an order of the District Court defied by appellants. As appellants apparently never resisted a specific order of the District Court, the Government moved to dismiss the defective indictment, and the indictment was dismissed on November 17, 1982.

Simultaneous with dismissal of the indictment, appellants were again served with grand jury subpoenas. Appellants responded by filing a civil action against the United States, renewing allegations of selective prosecution and governmental misconduct and seeking injunctive relief staying enforcement of the grand jury subpoenas. Judge Sifton treated appellants' civil action as a motion to quash. On January 3, 1983, the District Judge declined to quash the subpoenas, determined that no abuse of the grand jury process had been shown, and directed defendants to "appear and testify before the grand jury."

Appellants remained recalcitrant. On January 19, 1983, appellants appeared before Judge Sifton. After advising appellants of their rights before the grand jury and explaining the consequences of their defiance of the Court's order, Judge Sifton specifically ordered appellants to appear and testify that day before the grand jury and to return to the District Court in the event that they persisted in their defiance. Later that day, following representations by appellants and Government counsel that appellants had failed to appear before the grand jury, Judge Sifton granted the Government's request to issue an order, pursuant to Fed.R.Crim.P. 42(b), directing appellants to show cause why they should not be found guilty of criminal contempt. Judge Sifton set trial for February 7, 1983.

Appellants moved for a continuance. They alleged that prejudicial pretrial publicity, exacerbated by the December 31, 1982, bombings of various federal buildings in New York City (including the United States Courthouse for the Eastern District of New York) attributed to the FALN, precluded a fair trial. At the start of jury selection, Judge Sifton denied a continuance. However, over appellants' objections, he granted the Government's request for an anonymous jury.

At trial, appellants conceded that they had willfully defied Judge Sifton's order. That concession should have narrowed the scope of the trial and left little for the jury's consideration. Instead, it served as a ploy for turning the trial away from a determination of whether the elements of the offense charged had been proved beyond a reasonable doubt into a wide-ranging inquiry into matters far beyond the scope of legitimate issues in a criminal trial. In the current fashion of mounting what some have called a "political" defense, appellants condemned United States involvement in Puerto Rico and in third world countries, alleged F.B.I. persecution of sympathizers of independence for Puerto Rico, and invited jury nullification by questioning the Government's motives in subpoenaing appellants and prosecuting them for contempt. One witness, a self-proclaimed expert on grand jury abuse, testified that the Government used the grand jury to "punish people whose political beliefs are an anathema to the Government ...." In addition, apparently making the erroneous assumption that good motive for committing a crime is inconsistent with criminal intent, appellants presented witnesses who testified that cooperation with the grand jury investigation would compromise their effectiveness as community leaders. Appellants also introduced testimony of their good character and devotion to community service.

The Government sought and was granted leave, over appellants' objection, to present limited rebuttal testimony. The rebuttal evidence was offered in response to appellants' allegations of grand jury abuse and assertions of political and religious motives for refusing to testify. The rebuttal was also prompted by Judge Sifton's ruling that he would submit to the jury the question whether appellants' offense was "petty" or "serious." Concerned about potential prejudice to appellants, Judge Sifton precluded introduction of rebuttal evidence offered to prove that appellants were members of the FALN and that they possessed information regarding FALN actions. The Court permitted testimony concerning only the seriousness of the crimes investigated and the importance of grand jury testimony as an investigative device. Three police officers described various FALN bombings and emphasized the importance of grand juries.

After more than twelve hours of deliberations, the jury convicted all appellants of "serious" criminal contempt.

Discussion

Appellants raise three principal issues on appeal. First, they contend that they were denied a fair trial because of prejudicial publicity, the District Court's denial of their motion for a continuance, and the Court's explanation of the reason for anonymous jury selection. Second, appellants allege that the Government's rebuttal case impermissibly introduced irrelevant and prejudicial evidence. Third, appellants assert that the trial court failed to impose sufficient sanctions to remedy alleged Government misconduct. We consider each issue in turn. ⁴

1. Appellants' fair trial claim initially challenges prejudicial publicity,...