973 F.2d 107 (2nd Cir. 1992), 1412, Laaman v. United States

Docket Nº:1412, 1254 and 1291, Dockets 91-2547, 91-2558 and 91-2581.
Citation:973 F.2d 107
Party Name:Jaan Karl LAAMAN, Plaintiff-Appellant, Richard C. Williams; Barbara Jean Curzi, Petitioners-Appellants, v. UNITED STATES of America, Defendant-Appellee.
Case Date:August 19, 1992
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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973 F.2d 107 (2nd Cir. 1992)

Jaan Karl LAAMAN, Plaintiff-Appellant,

Richard C. Williams; Barbara Jean Curzi, Petitioners-Appellants,

v.

UNITED STATES of America, Defendant-Appellee.

Nos. 1412, 1254 and 1291, Dockets 91-2547, 91-2558 and 91-2581.

United States Court of Appeals, Second Circuit

August 19, 1992

Argued March 31, 1992.

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Richard W. Berne, Bronx, N.Y. (Brown, Berne & Serra, of counsel), for plaintiff-appellant.

Kenneth J. King, Jamaica Plain, Mass. (Fenn & King, Jamaica Plain, Mass. and Daniel L. Meyers, New York City, of counsel), for petitioner-appellant Williams.

Linda J. Thompson, Springfield, Mass. (John M. Thompson, Salomone & Thompson, Springfield, Mass. and Lee Ginsberg, Freeman, Nooter & Ginsberg, New York City, of counsel), for petitioner-appellant Curzi.

Andrew Weissmann, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty. and Susan Corkery, Asst. U.S. Atty., of counsel), for defendant-appellee.

Before: KEARSE and MAHONEY, Circuit Judges, and METZNER, District Judge. [*]

MAHONEY, Circuit Judge:

Plaintiff-appellant Jaan Karl Laaman, petitioner-appellant Richard C. Williams, and petitioner-appellant Barbara Jean Curzi (collectively "petitioners") appeal from an order of the United States District Court for the Eastern District of New York, I. Leo Glasser, Judge, entered September 17, 1991 that denied their petitions to vacate or set aside their sentences pursuant to 28 U.S.C. § 2255 (1988). See Curzi v. United States, 773 F.Supp. 535 (E.D.N.Y.1991) (memorandum and order of the district court).

Petitioners, along with three codefendants, had been convicted of conspiring to bomb a number of military offices and buildings used in interstate commerce in violation of 18 U.S.C. § 371 (1988), and several counts of bombing specific buildings in violation of 18 U.S.C. § 844(f), (i) (1988). In their petitions for collateral review, they allege that: (1) critical evidence used against them at trial was the product of a search conducted in violation of the Fourth Amendment; and (2) counsel in the original proceedings were ineffective under the Sixth Amendment for failing adequately to pursue the Fourth Amendment claim.

We affirm the district court's denial of § 2255 relief.

Background

The activities of the petitioners and the judicial proceedings resulting therefrom

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have been the subject of numerous published opinions in the federal courts of this circuit and the First Circuit, familiarity with which is assumed. Those pertinent here (in addition to the opinion from which this appeal is taken) are United States v. Curzi, 867 F.2d 36 (1st Cir.1989); United States v. Levasseur, 816 F.2d 37 (2d Cir.1987); United States v. Levasseur, 699 F.Supp. 995 (D.Mass.1988), aff'd, 867 F.2d 36 (1st Cir.1989); United States v. Levasseur, 699 F.Supp. 965 (D.Mass.1988); United States v. Levasseur, 619 F.Supp. 775 (E.D.N.Y.1985), aff'd, 816 F.2d 37 (2d Cir.1987); and United States v. Levasseur, 618 F.Supp. 1390 (E.D.N.Y.1985).

Laaman, Williams, and Curzi, who is Laaman's wife, were members of a domestic terrorist organization styled the United Freedom Front ("UFF"). Other members included Raymond Levasseur, Carol Ann Manning, Thomas William Manning, and Patricia Gros. In the late 1970s and early 1980s, members of the UFF were wanted for numerous bombings of buildings and offices, government and private, related to the military establishment; the murder of a New Jersey state trooper in 1981; the attempted murder of two Massachusetts state troopers in 1982; and several armed bank robberies. Accordingly, they were the subject of a massive dragnet. This ultimately led to petitioners' apprehension in Cleveland, Ohio on November 4, 1984. We quote the description of that event provided by the First Circuit, because it highlights aspects which will become pertinent to our subsequent discussion of the legal issues in this case.

In the course of an ongoing manhunt for the terrorists, the FBI spotted Patricia Gros, another suspected gang member. Agents tracked her to a dwelling in Deerfield, Ohio which she shared with Levasseur. Surveillance was established. Agents saw Williams leave the Gros/Levasseur residence in his car on the evening of November 3, 1984. He was followed to Cleveland and trailed to the "4200 block" on West 22d Street. Although the agents did not see which building Williams entered, they cordoned off the entire block during the night. A cadre of law enforcement officers was assembled, including SWAT teams from as far away as Pittsburgh.

Early on the morning of November 4, the FBI received a telephone-trace report which showed that Williams, while en route to Cleveland, had called 4248 W. 22d St. At this point--approximately 8:00 a.m.--official attention focused on the single family home at that address. The surrounding houses were evacuated and more than 35 officers, all armed and many clad in bullet-proof vests, took their places. Roughly half an hour later, at about 8:30 a.m., Williams's hideaway was precisely confirmed; agents saw him leave the house, retrieve something from his parked car, and reenter the premises. The dragnet remained in place. No endeavor was made to procure a search warrant, but there was an attempt to ascertain the homeowner's identity. The agents were able to learn that the telephone number which Williams had called was listed to one Lisa Owens. The name meant nothing to the FBI; the agents could not connect it with the gang or with any criminal activity. They remained completely in the dark as to whether anyone other than Williams was on the premises.

By 10:15 a.m., there had been no material change in circumstances. The FBI chose that moment, however, to escalate the drama into its next stage. An agent telephoned Owens's number and ordered the "occupants"--whoever they might prove to be--to exit. After a short delay, during which several more orders were issued, three children debouched; Williams, Curzi, and Laaman soon followed. The adults were immediately arrested (the two men on outstanding warrants; [Curzi] on a charge of harboring). Without pausing, the agents entered the dwelling and carried out a security check. They found guns and explosives in plain sight. Later, the FBI obtained a warrant authorizing a full-scale search of the premises. The underlying affidavit relied heavily upon Laaman's arrest outside

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the house and the items discovered in the course of the protective sweep.

867 F.2d at 37-38.

  1. The Direct Proceedings in the Second Circuit.

    Petitioners and their codefendants were then indicted on the conspiracy and bombing charges described supra. Prior to trial, Laaman and Curzi moved to suppress evidence seized from the West 22nd Street residence (the "Cleveland Residence") as the product of an illegal search. 1 The district court issued two opinions that addressed different aspects of that motion. Initially, the court ruled (the "Entry Ruling") that the sweep of the Cleveland Residence conducted by the police immediately after the arrest of the petitioners was properly incident to the arrest, stating:

    Exiting from the premises in question were only three of those sought. Still at large were the Mannings and possibly others. The defendants were wanted for numerous bombings of government and other buildings extending over a period of seven years and as has been indicated, some of them were also wanted for serious crimes of violence. The police clearly had a reasonable belief that third persons may [sic] be inside the house and a reasonable belief that they might destroy evidence or jeopardize the safety of the officers or the public. The conclusion that entry into the house was necessary, indeed required, by a compelling urgency is inescapable.

    618 F.Supp. at 1392-93. The court also ruled that four weapons and a cannister apparently containing explosive powder that were discovered during the initial sweep were subject to seizure under the "plain view" doctrine, although only the cannister was actually seized prior to obtaining a search warrant. Id. at 1393.

    As relevant here, the court's subsequent decision addressed defendants' contentions that (1) the warrant to search the premises had been based upon an affidavit by F.B.I. agent Leonard C. Cross (the "Cross Affidavit") that "contained statements which were knowingly and intentionally false or made by [Cross] with a reckless disregard for the truth and that a hearing to test their contentions [was] required by Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978);" and (2) "the [Cross...

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