Kikumura v. U.S., Civil Action No. 96-3781(AJL).

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
Citation978 F.Supp. 563
Docket NumberCivil Action No. 96-3781(AJL).
PartiesYu KIKUMURA, Petitioner, v. UNITED STATES of America, Respondent.
Decision Date28 August 1997
978 F.Supp. 563
Yu KIKUMURA, Petitioner,
UNITED STATES of America, Respondent.
Civil Action No. 96-3781(AJL).
United States District Court, D. New Jersey.
August 28, 1997.

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Glenn A. Garber, Garber & Rodi, P.C., New York City, for Petitioner.

Faith Hochberg, U.S. Attorney, Kevin McNulty, Assistant U.S. Attorney, Newark, NJ, for U.S.


LECHNER, District Judge.

Petitioner Yu Kikumura ("Kikumura"), presently incarcerated at A.D.X. Florence, a Federal Penitentiary in Florence, Colorado, brings this petition for a writ of habeas corpus (the "Habeas Petition") pursuant to 28 U.S.C. § 2255.1 For reasons set forth below, the Habeas Petition is denied. There is no probable cause for appeal.


A. Arrest and Indictment

On 12 August 1988, Kikumura was detained by New Jersey State Trooper, Robert Cieplensky ("Cieplensky"), for careless driving. United States v. Kikumura, 698 F.Supp. 546 (D.N.J.1988) ("Kikumura I"). Following an exchange between Cieplensky and Kikumura, Cieplensky identified seven cylinders of gunpowder and shot on the back-seat of the vehicle driven by Kikumura (the "Kikumura Vehicle"). Id. Cieplensky proceeded to conduct a pat down search of Kikumura and an interior search of the Kikumura Vehicle. The search led to the discovery of a large bag of lead shot, seven gunpowder canisters and three homemade bombs, as well as altered passport and visa documents, in the Kikumura Vehicle. Id. Kikumura was subsequently arrested. The grand jury returned a twelve count indictment ("Indictment") against Kikumura, charging him with, among other charges, the possession of explosives with the intent to damage property

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or harm people, pursuant to 18 U.S.C. § 844(d) ("Section 844(d)"). See Indictment.2

B. Motion to Suppress

Kikumura filed a motion to suppress ("Motion to Suppress"), challenging the legality of the pat down search and search of the Kikumura Vehicle. Kikumura I, 698 F.Supp. at 555. A suppression hearing was conducted on 30 September 1988. See Transcript of Proceedings, dated 30 September 1988. The detention, pat-down search and search of the vehicle were found to be constitutional. Kikumura I, 698 F.Supp. at 562. The Motion to Suppress was denied, id.; the decision was affirmed on appeal. Kikumura III, 918 F.2d at 1090, 1093.

C. Trial on Stipulated Facts

The matter was scheduled for trial on 28 November 1988. At that time, counsel for Kikumura, William M. Kuntsler ("Kuntsler") and Ronald L. Kuby ("Kuby") (collectively, "Trial Counsel"), proposed the Government and Kikumura enter into a stipulated set of facts, while preserving the issues for appeal, and Kikumura waive a trial by a jury. United States v. Kikumura, 706 F.Supp. 331, 333 (D.N.J.1989) ("Kikumura II") (citing Transcript of Proceedings, dated 28 November 1995 ("28 November 1995 Tr."), 155-161).

Kikumura stipulated he transported the explosives with the knowledge and intent that they be used to damage or destroy property. United States v. Kikumura, 947 F.2d 72, 74 (3d Cir.1991) ("Kikumura IV"). Kikumura refused to stipulate to the statutory language that he transported the explosives for their use to "kill, injure and intimidate one or more individuals." Id. The Government made clear it was "stipulating to the facts for purposes of the trial, the adjudication of guilty or innocence," and that it was not stipulating to facts under the Sentencing Reform Act for the purposes of sentencing. See Transcript of Proceedings, dated 29 November 1988 ("29 November 1988 Tr."), 6; see also id. at 25-26. Kikumura agreed the "stipulation [did not] bar [the Government] from doing anything they would ordinarily be permitted to do at sentencing." Id. at 26.

"Kikumura was convicted of numerous counts of interstate transportation of explosive devices and passport offenses, including a charge that he violated [Section 844(d) ] which prohibits the transportation of any explosive in interstate commerce `with the knowledge or intent that it will be used to kill, injure or intimidate any individual or unlawfully to damage or destroy any building, vehicle or real or personal property.'" Kikumura IV, 947 F.2d at 73-74.

D. Sentencing

Kikumura was sentenced on 7 February 1989 ("First Sentencing Hearing"). Kikumura IV, 947 F.2d at 74. The conviction exposed Kikumura to the statutory penalty of one hundred years in prison, fines of several millions dollars, plus a supervised release term of three years. Kikumura II, 706 F.Supp. at 334.

The Department of Probation ("Probation") computed the Guideline range for imprisonment pursuant to the Sentencing Commission Guidelines Manual ("Guidelines") and the Sentencing Reform Act, 18 U.S.C. § 3551 et seq. Kikumura I, 706 F.Supp. at 334. Probation calculated the range of imprisonment to be a total of from twenty-seven to thirty-three months for all twelve counts, based upon a criminal history of one and a total offense level of eighteen. Id. A term of supervised release of not less than two and not more than three years and a fine in the range of $6,000 and $60,000. Id.

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At sentencing, an upward departure was imposed upon a "finding the Sentencing Commission did not adequately consider (and in fact did not consider) the kind or degree of conduct at issue." Kikumura II, 706 F.Supp. at 334. Kikumura was sentenced to a term of three hundred-sixty months, comprised as follows: one hundred twenty months on each of counts one and two, to run concurrently with each other; sixty months on count three, to run consecutively to the sentence imposed on counts one and two; one hundred twenty months on each of counts four through nine, to run concurrently with each of counts four through nine, but consecutively to sentence imposed on count three; sixty months on each of counts ten through twelve, to run concurrently with each of counts ten through twelve, but consecutively to the sentence imposed on counts four through nine. Id. A term of three years supervised release and a special monetary assessment in the total amount of $600.00 was imposed. Id. at 334-35.

The departure was based upon facts as found at the suppression hearing, the trial facts as stipulated by Kikumura, the testimony at the First Sentencing Hearing and other reliable evidence offered at the First Sentencing Hearing.3 Kikumura II, 706 F.Supp. at 335. The findings of fact upon which the upward departure was based are summarized below.4

a. Kikumura's Background

Kikumura is a member of the Japanese Red Army ("JRA"), a terrorist organization. Kikumura II, 706 F.Supp. at 335. Kikumura received training from, and has trained members of, the JRA. Id.

In May, 1986, Kikumura was arrested when he attempted to enter the Netherlands through Schiphol Airport in Amsterdam. Kikumura II, 706 F.Supp. at 336. Netherlands authorities searched Kikumura's luggage and discovered a cardboard drink container filled with over two pounds of a high explosive. Id. The authorities also found a Sanyo radio concealing six detonators of the type used to detonate explosives. Id. "[T]he placement and concealment of the detonators was so well done they appeared to be integral parts of the radio." Id. After Kikumura spent four months in a Netherlands prison, his prosecution was discontinued — not because he was innocent — but due to an technical illegality under Netherlands law. Id.

In autumn 1986, Kikumura arrived at a camp located in the Bekaa Valley of Lebanon ("Bekaa Valley Camp"). Kikumura II, 706 F.Supp. at 335. The Bekaa Valley Camp was maintained by a terrorist organization, a member of which was the CI who supplied data to the FBI. Id. Beginning in as early as 1984, three members of the JRA attended the Bekaa Valley Camp for one week to receive "instruction on different methods of combining chemicals to make explosives and detonators and the construction of improvised bombs." Id. at 335-36. The CI was informed the one week training session was the commencement of a more cohesive training session for the JRA. Id. at 336.

Two of the individuals from the JRA returned to the Bekaa Valley Camp in January, 1985. They received training on the manufacture of explosives using ammonium nitrate and aluminum powder. Kikumura II, 706 F.Supp. at 336. They also practiced using flash bulbs as detonators and preparing mercury fulminate detonators.5 Id.

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In April 1985, three Japanese, including Junzo Okudaira ("Okudaira"), arrived at the Bekaa Valley Camp to conduct "research on remote control devices." Kikumura II, 706 F.Supp. at 336. Between April 1985 and May 1986, JRA members made short, sporadic trips to the Bekaa Valley Camp. Between spring and autumn of 1986, other members of the JRA moved into and began to construct barrack housing in the Bekaa Valley Camp. Id. As stated, Kikumura arrived at the Bekaa Valley Camp in autumn 1986.

The CI described "Kikumura as a `country boy' who spoke English[,] ... trained other JRA members in the use of rifles and handguns ... [and] was a competent commando with a knowledge of explosives." Kikumura II, 706 F.Supp. at 336. Kikumura also admitted to the CI he had been to many countries and had previously been arrested in another country. Id. at 336-37. The CI was told by another member of the JRA at the Bekaa Valley Camp that the United States was the main enemy of the JRA and the JRA planned to strike the United States. Id. at 337.

b. Current Offense Conduct

In February 1988, while in Europe, Kikumura obtained several visas for entry into several European countries and the United States. He opened a bank account in Switzerland and obtained a valid Japanese passport which was altered to show his likeness. Kikumura II, 706 F.Supp. at 337.

Upon entry into the United States, Kikumura "rented an apartment [in Manhattan], purchased a 1980 Mazda automobile and traveled approximately 7000 miles to...

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