U.S. v. Sababu

• Decision Date: 21 December 1989
• Docket Number: Nos. 88-1450,88-1434 and 88-1476,s. 88-1450
• Citation: 891 F.2d 1308
• Parties: 29 Fed. R. Evid. Serv. 332 UNITED STATES of America, Plaintiff-Appellee, v. Kojo SABABU, Jaime Delgado, and Dora Garcia, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1308

891 F.2d 1308

29 Fed. R. Evid. Serv. 332

UNITED STATES of America, Plaintiff-Appellee, v. Kojo SABABU, Jaime Delgado, and Dora Garcia, Defendants-Appellants.

Nos. 88-1450, 88-1434 and 88-1476.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 27, 1989.

Decided Dec. 21, 1989.

Anton R. Valukas, U.S. Atty., Joan G. Fickinger and James R. Ferguson, Asst. U.S. Attys., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Jeffrey A. Haas, People's Law Office, Chicago, Ill., for Kojo Sababu.

Jan Susler, Chicago, Ill., for Jaime Delgado.

Carol A. Brook, Federal Defender Program, Chicago, Ill., for Dora Garcia.

Before CUMMINGS, CUDAHY, and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

The July 1987 Grand Jury returned an eight count superceding indictment against Oscar Lopez, Kojo Sababu, ¹ Jaime Delgado, Claude Marks, Donna Jean Willmott, and Dora Garcia. ² Count 1 of the indictment alleged that the defendants participated in a multi-goal conspiracy to effect the escape of several inmates from Leavenworth federal penitentiary, to transport weapons and explosives with intent to kill and injure people, and to use explosives to destroy government buildings and property. Counts 2-8 alleged Travel Act violations under 18 U.S.C. § 1952. Specifically, Counts 2 and 3 alleged that Delgado, aided by Lopez, travelled from Chicago to Dallas, and back, to promote arson under the laws of Kansas. Counts 4, 5, and 8 alleged that Garcia, aided by Lopez, travelled from Chicago to Leavenworth, Kansas, and back, to promote arson under the laws of Kansas. Counts 6 and 7 alleged that Lopez and Garcia used a telephone to communicate between Chicago and Leavenworth to promote arson under the laws of Kansas.

After a ten week trial, a jury convicted Lopez, Sababu, Delgado and Garcia on the Count 1 conspiracy charge. The jury also returned guilty verdicts on Counts 2, 3, 7 and 8, but acquitted on the remaining counts. Delgado was sentenced to serve a four year sentence to be followed by five years of probation. Garcia was sentenced to a three year sentence and five years of probation. Sababu received a five-year sentence to run consecutively to the prison sentence he was already serving. Lopez received a fifteen-year sentence, also to run consecutively to the prison sentence he was already serving. The defendants raise numerous claims on appeal. We affirm on all counts.

I. Background

The convictions in this case arise from a broad, multi-goal conspiracy to effect the escape of several inmates from the Leavenworth federal penitentiary; to transport explosives with the intent to kill and injure people; and to use explosives to destroy government buildings and property. Due to the nature of the defendants' claims on appeal, it is necessary to trace the development of the conspiracy in considerable detail. The conspiracy lasted more than two years and included overt acts committed in Kansas, Texas, Louisiana, California and Illinois. At the heart of the conspiracy were defendants Lopez and Sababu, two inmates at the Leavenworth penitentiary, and Chicago defendants Jaime Delgado and Dora Garcia, who conspired with Lopez and Sababu from outside the prison. The conspirators also included California defendants Claude Marks and Donna Jean Willmott, who fled before trial and as of the time of the trial were still at large. In proving the conspiracy at trial, the government relied on audio and video-taped recordings of the defendants, documents written by the defendants, the testimony of several federal agents and officials, and the testimony of two cooperating Leavenworth inmates, George Lebosky and Richard Cobb.

The origins of the conspiracy can be traced to mid-1983, when Lopez, Sababu, David Bryant, and Richard Cobb, all inmates at Leavenworth, began discussing their political philosophies. In those conversations, Lopez boasted that he was the Chicago leader of the FALN, ³ an armed clandestine terrorist group dedicated to the violent overthrow of United States rule over Puerto Rico. Lopez told the others that he believed the only way he could win independence for Puerto Rico was by engaging in violent acts against private businesses and against United States government installations. Lopez explained that "his people" lived in Chicago and that he communicated with them through visits, mail and coded telephone calls.

During these conversations, Lopez urged the inmates to begin their own campaign of "armed struggle." All four men discussed the kind of weaponry they would need for their struggle, agreeing that the list should include assault rifles, explosives, remote control devices, plastic explosives, grenades, and a LAW rocket. ⁴ The flaw in the plan, the inmates realized, was the difficulty of conducting an armed struggle while still imprisoned at Leavenworth. By the summer of 1984, their plan for an "armed struggle" was focused on the more immediate need to formulate a plan of escape from the penitentiary.

Thereafter, Sababu and Cobb discussed the possibility of escape many times. During one of these conversations, Cobb told Sababu that he had heard from another inmate that a helicopter could enter Leavenworth and pick up prisoners without any of the participants being harmed. Sababu presented this plan to Lopez because Sababu believed that Lopez had the organization of people to carry out a helicopter escape. Later, Sababu reported back to Cobb that Lopez liked the idea and agreed to present it to "his people" to get their reaction.

Several weeks later, Lopez told Cobb that the FALN had given him permission to participate in the escape plan. Lopez said the FALN would provide a helicopter, pilot, and some of the materials that would be needed for the escape. Since Cobb was due to leave Leavenworth on parole in the near future, he agreed to provide the FALN with inside information concerning the guards and possible landing sites.

From late 1984 to mid-1985, Lopez, Sababu, Cobb, and occasionally Bryant, met on a daily basis to work out the details of their escape plan. In its final form, the plan called for a helicopter to be flown into the Leavenworth prison yard and land on top of the Education Building. Guards would be held off with gunfire. Helicopters at nearby Fort Leavenworth were to be disabled by Cobb, using explosive devices set by timers. In planning the escape, Lopez, Sababu, and Cobb had consulted an aerial photograph of Leavenworth, an enlarged Federal Reserve map, a surveyor's map, and a Coroner's inquest containing information describing a similar helicopter escape attempt at Marion Penitentiary.

Once out of the prison, the escapees planned to obtain cars in Missouri and then travel to a safehouse located in Des Moines, Iowa, where they would then accumulate funds through robbery or counterfeiting. With that funding, the conspirators intended to buy various explosives and firearms to blow up buildings and kill people. Lopez promised to bring FALN members to help train the men in their "armed struggle."

In September, 1984, Lopez revealed the plan to George Lebosky, another inmate at Leavenworth. Lebosky told Lopez that he knew of a Houston lawyer who had a weapons contact in Louisiana. In reality, Lebosky did not know a Houston lawyer or Louisiana weapons dealer, but he said he did to impress Lopez. Lopez then told Lebosky that he had an escape plan, but added that he had to delay it for another ten months because a certain inmate at Leavenworth would not be released until that time.

Several months after the escape plan was formulated, Lopez learned that a leading figure in the "armed struggle" outside the prison had been arrested. Because of the arrest, Lopez was uncertain whether the FALN would be able to provide weapons and explosives. Accordingly, Sababu agreed to approach Lebosky and ask him if he could get weapons and explosives from his alleged source in Houston. In December, 1984, Sababu visited Lebosky's cell and told him that Lopez wanted to know whether Lebosky's weapons dealer was still in place. To avoid being caught in his lie, Lebosky said he would call and find out. Although Lebosky never placed that call, he told Sababu several days later that he had learned that the weapons dealer was still available. Sababu said he would let Lopez know.

Several weeks later, Sababu again approached Lebosky, this time with a list of weapons and said, "This is a list of things that me and the other guys will need to make a beat." The list included fragmentation grenades, smoke grenades, phosphorous grenades, eight M16 (automatic) rifles, two silencers, 50 pounds of plastic C-4 explosives, eight bulletproof vests, ten blasting caps to use with the plastic explosives, and 100 30-shot clips for use with the automatic weapons. Sababu told Lebosky that if he could not get the M16s, he should get AR15s, (semi-automatic rifles), which they would then convert to fully automatic weapons. Sababu told Lebosky that the smoke grenades were to be used in the prison yard to obstruct the guards' vision, and the fragmentation grenades were to be used to throw against the guard tower.

Sababu gave the list to Lebosky and told him to get in touch with the attorney in Houston to find out the cost and availability of the weapons. To maintain his credibility with Sababu, Lebosky later told him that the "weapons dealer" said the cost would total $17,600. Sababu relayed this information to Lopez, telling him, "I got a price for the weapons." Lopez said he was pleased with the price, and that he would get in touch with his people in Chicago to make arrangements for payment.

The following day, Sababu stopped by Lebosky's cell to ask him whether the weapons could be picked up and paid for later. Lebosky later told Sababu that he had called the Houston attorney (although he really had not) and that the attorney said the weapons would have to be paid for when they were...