918 F.2d 1084 (3rd Cir. 1990), 89-5129, United States v. Kikumura

Docket Nº:89-5129.
Citation:918 F.2d 1084
Party Name:UNITED STATES of America v. KIKUMURA, Yu, Appellant.
Case Date:November 02, 1990
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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918 F.2d 1084 (3rd Cir. 1990)

UNITED STATES of America

v.

KIKUMURA, Yu, Appellant.

No. 89-5129.

United States Court of Appeals, Third Circuit

November 2, 1990

Argued Sept. 7, 1989.

As Amended Dec. 5, 1990.

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Ronald L. Kuby (argued), William M. Kunstler (argued), New York City, for appellant.

Samuel A. Alito, Jr. (argued), U.S. Atty., John P. Lacey, Asst. U.S. Atty., Newark, N.J., for appellee.

TABLE OF CONTENTS PAGE I. INTRODUCTION ....................................................... 1089 II. THE SEARCH AND SEIZURE ISSUES ...................................... 1089 III. THE SENTENCING ISSUES .............................................. 1093 A. Background ..................................................... 1093 1. Procedural History ........................................ 1093 2. The Relevant Evidence ..................................... 1094 3. The District Court's Findings and Conclusions ............. 1097 B. Guideline Departures--General Principles and the Applicable Standard of Proof ............................................ 1098 1. Introduction .............................................. 1098 2. Discussion ................................................ 1098 C. Consideration of the Hearsay Statements of a Confidential Informant .................................................... 1102 D. Validity of the District Court's Factfinding ................... 1104 E. Was an Offense"Related Departure Legally Permissible? .......... 1104 F. Was the Departure Reasonable? .................................. 1110 1. Departure Methodology ..................................... 1110 2. Application of the Methodology ............................ 1114 a. Criminal history category ............................ 1114 b. Intent to kill people ................................ 1115 c. More than minimal planning ........................... 1116 d. Intent to disrupt a governmental function ............ 1116 e. Extreme conduct and endangerment of public safety .... 1118 f. Summary .............................................. 1119 Page 1089

Before BECKER, COWEN and ROSENN, Circuit Judges.

OPINION

BECKER, Circuit Judge.

I. INTRODUCTION

Appellant Yu Kikumura was convicted of several explosives and passport offenses, for which the federal sentencing guidelines prescribed a sentencing range of between 27 and 33 months in prison. Evidence produced at the sentencing hearing indicated that Kikumura had manufactured three lethal home-made firebombs from scratch in preparation for a major terrorist bombing on American soil--conduct far more serious than is evident from the face of the charged offenses. The district court imposed a sentence of 30 years' imprisonment--apparently the largest departure from an applicable guideline range, in absolute or percentage terms, since the sentencing guidelines became effective. Kikumura appeals that sentence.

We must decide a number of difficult issues: (1) the appropriate standard of proof with respect to factfinding bearing on departures when the magnitude of a proposed departure dwarfs the guideline range applicable to the substantive offenses of conviction; (2) the admissibility for sentencing purposes of hearsay statements by a confidential informant; (3) whether the circumstances of Kikumura's offense were adequately taken into consideration by the Sentencing Commission in fashioning the guideline range from which the district court departed; (4) how to determine the reasonableness of departures; and (5) whether the sentence imposed in this case was reasonable under the appropriate methodology.

We conclude that: (1) under the circumstances, a clear and convincing standard of proof is required (and was met); (2) in view of extensive corroboration from independent sources, the statements of the confidential informant were sufficiently reliable to be considered; (3) the circumstances of Kikumura's offense were not adequately contemplated by the Sentencing Commission, and hence an upward departure was permitted; (4) a useful methodology for making an offense-related departure from the guidelines (and the one we apply here) is to determine what offense level a defendant's conduct most closely approximates by analogizing to other guidelines; and (5) under the circumstances, an upward departure to 360 months was unreasonable, but an upward departure to at most 262 months would not be unreasonable. We therefore will vacate the judgment of sentence and remand for resentencing.

II. THE SEARCH AND SEIZURE ISSUES

Before we consider the sentencing issues, we must address Kikumura's contention that the district court erred in failing to suppress evidence which, according to Kikumura, was obtained in violation of the fourth amendment. We find no fourth

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amendment violation and therefore reject this argument.

The relevant facts, as found by the district court, are as follows. 1 On the morning of April 12, 1988, New Jersey State Trooper Robert Cieplensky entered the Vince Lombardi service area at the northern end of the New Jersey Turnpike. Cieplensky noticed a man, later identified as Kikumura, twice begin to walk from his car to the service area, only to return to his car abruptly upon establishing eye contact with the trooper. As Cieplensky drove past, Kikumura "milled around" his car for a time. He later walked back toward the service area restaurants, but when he saw Cieplensky turn down a different traffic lane and head toward the restaurants, he quickly turned around, returned to his car, and once more began "milling around." When Cieplensky passed him again, however, Kikumura entered his car and began to drive away in what Cieplensky considered to be a reckless fashion--cutting across two parking lanes within five feet of parked vehicles at a rate of between 25 and 30 miles per hour. Cieplensky ordered Kikumura to stop. Kikumura did so, exited the car, and met Cieplensky outside.

Cieplensky observed fresh burn marks on Kikumura's neck, as well as bandages on his neck and hands. Also, Cieplensky noticed a large black bag and its contents in plain view inside the car. The bag contained seven empty "Hercules" brand gunpowder canisters and a pouch of lead shot. When full, the canisters would have contained several times the amount of gunpowder Cieplensky's father, a regular hunter, would use during an entire season. Concluding that Kikumura could not have been using that amount of gunpowder simply for recreational purposes, Cieplensky conducted a pat-down search of Kikumura, but found no weapon.

Cieplensky then noticed, also in plain view inside Kikumura's car, a cardboard box containing three red cylindrical objects with black tape and wires. He asked Kikumura what was in the box, and Kikumura replied: "Souvenirs. Go ahead, check it out." When Cieplensky did so, he discovered the bombs, handcuffed Kikumura, and placed him under arrest inside the patrol car. Cieplensky then searched the rest of Kikumura's car, including the trunk.

Kikumura, however, insists that he had carefully hidden his bombs, gunpowder canisters, and lead shot inside a suitcase in the trunk of his car. In other words, Kikumura challenges as clearly erroneous the district court's finding that these items were discovered in the passenger compartment. Kikumura faces an uphill battle on this score, for he must overcome a standard of review under which reversal is permitted only if we are "left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). If the district court's finding is "plausible in light of the record viewed in its entirety," we must accept it, even if we would have evaluated the evidence differently in the first instance. See Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985).

At the suppression hearing, Kikumura told a story entirely different from Cieplensky's. According to Kikumura, Cieplensky, after finishing the pat-down search outside the car, removed the keys from the ignition without Kikumura's permission and proceeded to open the trunk of the car and the suitcase inside the trunk, only then finding the bag containing the gunpowder canisters and lead shot and the box containing the bombs. Deciding which of these irreconcilable stories to believe involved resolving a swearing contest between live witnesses, which the district court was far better situated to do than are we. We must defer, for example, to the district court's evaluation of the "demeanor, tone of voice, [and] manner of response" of the witnesses, 698 F.Supp. at

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552, each of which is essentially unreviewable.

Kikumura, however, relies heavily on the testimony of John Crowley, a gas station attendant who observed part of the encounter between Cieplensky and Kikumura. Crowley testified that he saw Cieplensky looking into the trunk of Kikumura's car while Kikumura stood outside beside the car. Crowley did not observe where Kikumura's bombs were located. However, as Kikumura points out, Crowley's testimony is inconsistent with Cieplensky's to the extent Cieplensky testified that he had placed Kikumura inside the patrol car before searching the trunk. 2

Kikumura contends that it was clear error for the district court not to credit the testimony of Crowley, "the one eyewitness with absolutely no motivation to lie." Reply Br. at 21. We disagree. A witness's testimonial capacity depends not only on his truthfulness, but also on his perception and memory: in order to give an accurate account of some past event to a factfinder, the witness must accurately (1) perceive the event when it occurred, (2) remember what he...

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