U.S. v. Ferguson

• Decision Date: 28 March 1985
• Docket Number: Nos. 458,570,D,459,569,s. 458
• Citation: 758 F.2d 843
• Parties: UNITED STATES of America, Appellee, v. Cecil FERGUSON, a/k/a "Mo," a/k/a "Chui," Edward Lawrence Joseph, a/k/a "J.R.," a/k/a "Jamal," a/k/a "Tony," Silvia Baraldini, a/k/a "Louise," and Sekou Odings, a/k/a "Nathaniel Burns," a/k/a "Mugubasi," a/k/a "Eddie Holmes," Defendants-Appellants. ockets 84-1069, 84-1070, 84-1071, 84-1072.
• Court: U.S. Court of Appeals — Second Circuit

Page 843

758 F.2d 843

UNITED STATES of America, Appellee, v. Cecil FERGUSON, a/k/a "Mo," a/k/a "Chui," Edward Lawrence Joseph, a/k/a "J.R.," a/k/a "Jamal," a/k/a "Tony," Silvia Baraldini, a/k/a "Louise," and Sekou Odings, a/k/a "Nathaniel Burns," a/k/a "Mugubasi," a/k/a "Eddie Holmes," Defendants-Appellants.

Nos. 458, 459, 569, 570, Dockets 84-1069, 84-1070, 84-1071, 84-1072.

United States Court of Appeals Second Circuit.

Argued Dec. 13, 1984.

Decided March 28, 1985.

Lawrence A. Vogelman, New York City (Barry C. Scheck, Cardozo Criminal Law Clinic, New York City, of counsel), for defendant-appellant Edward Lawrence Joseph.

Jesse Berman, New York City, for defendant-appellant Cecil Ferguson.

Chokwe Lumumba, New York City (Lynne F. Stewart, New York City, of counsel), for defendant-appellant Sekou Odinga.

Susan V. Tipograph, New York City (Judith Holmes, New York City, of counsel), for defendant-appellant Silvia Baraldini.

Stacey J. Moritz, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., for the Southern Dist. of N.Y., Barry A. Bohrer, Asst. U.S. Atty., New York City, of counsel), for appellee, United States of America.

Before TIMBERS, CARDAMONE and ROSENN, ^* Circuit Judges.

CARDAMONE, Circuit Judge:

Sekou Odinga, Silvia Baraldini, Cecil Ferguson and Edward Joseph, who the evidence shows were involved in a series of armored truck robberies and two murders in the Bronx and Nanuet, New York in 1981 and in the prison escape of Black Liberation Army leader Joanne Chesimard, appeal from their convictions for their parts in those crimes. The principal claims of error the defendants raise are: (1) there was no probable cause for the issuance of an intercept order because the applications for electronic surveillance contain material omissions; (2) the trial court had no power to find two defendants guilty as accessories after the fact because they were not indicted as such and accessory after the fact is not a lesser included offense of bank robbery; (3) the maximum legal sentence following a conviction for being an accessory after the fact to armed robbery is 10 years, rather than the 12 1/2 years imposed; (4) it was improper to prosecute defendants, self-professed revolutionaries, under RICO; (5) defendants did not receive a fair trial; (6) the "kidnapping" of two prison guards during the escape of Joanne Chesimard was not a kidnapping under New Jersey law and thus could not serve as a predicate act under RICO; (7) Baraldini's conviction was not supported by sufficient evidence; and (8) Baraldini's sentence was excessive.

Defendants raise many other claims of error. ¹ Although sensitive to the various and related claims of police misconduct, inordinate prosecutorial zeal and political persecution, we find no merit to any of the arguments raised and hence affirm the convictions.

I. Background Facts

The four named defendants appeal from judgments of conviction entered in the United States District Court for the Southern District of New York after a five-month trial before District Judge Duffy and a jury. The nine count indictment charged eleven defendants. Count one charged eight defendants--including these four--with conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"). 18 U.S.C. Secs. 1961, 1962(d). Count two charged the same eight defendants with a substantive violation of the racketeering statute. 18 U.S.C. Secs. 1961, 1962(c). Counts three, four, and five charged Odinga and others with bank robbery, armed bank robbery and murder in the commission of an armed bank robbery based on a 1981 armored car robbery in the Bronx, New York during which a guard was murdered. 18 U.S.C. Secs. 2113(a), 2113(d), 2113(e). Counts six, seven, and eight also charged Odinga, Ferguson, Joseph, and others with those same violations based on a 1981 armored car robbery in Nanuet, New York during which a guard and two police officers were murdered. Count nine charged four individuals not involved in this appeal as accessories after the fact to the Nanuet robbery. 18 U.S.C. Sec. 3.

At trial, the government characterized these defendants as members of "The Family." Odinga, according to the government, was a member of a small group that planned the Family's crimes. Ms. Baraldini was a member of the enterprise's so-called "secondary team," a group of women that facilitated the crimes by arranging for cars, safe houses, and reconnaissance. Ferguson and Joseph were alleged to have planned and committed some of the various robberies and attempted robberies. The government produced 129 witnesses, among them were three co-conspirators who were offered protection and a new identity, a woman whose apartment was used as a safehouse, eyewitnesses to the robberies and prison escape, various state and federal law enforcement officers and experts, including agents who testified about wiretaps.

Odinga and Baraldini were found guilty on Counts one (RICO Conspiracy) and two (substantive RICO violation). These were the only counts for which Baraldini was indicted. Odinga was acquitted on Counts three through eight--those involving bank robbery, armed bank robbery, and murder in the commission of the two 1981 armed bank robberies. Ferguson and Joseph were found guilty as accessories after the fact to the bank robbery and armed robbery alleged in Counts six and seven (the 1981 Nanuet, New York armed robbery and murder). But they were acquitted on the charges specified in Counts one and two (the RICO counts) and on Counts six, seven, and eight. Two defendants--not involved in this appeal--were acquitted on all nine charges.

On February 15, 1984 Judge Duffy sentenced both Ferguson and Joseph to terms of twelve and one-half years. Odinga and Baraldini were sentenced to consecutive terms of 20 years' imprisonment and $25,000 fines on Counts one and two. Thus, these defendants each received terms of 40 years imprisonment and fines of $50,000. We turn to the issues raised by defendants.

II. Claims of Error Raised by Ferguson and Joseph

1. Electronic Surveillance

a. Material Omissions from Affidavits in Support of Wiretap Orders

Ferguson and Joseph first contend that the Assistant United States Attorneys (AUSA) deliberately withheld evidence from District Judge Haight, who issued the intercept order, that would have demonstrated that the government's chief informants, Sam Brown and Yvonne Thomas, were unreliable. The government's first application for a wiretap was made on December 15, 1981. The order was issued apparently on the basis that Brown had admitted participation in the Nanuet armed robbery, and FBI agent Maxwell was able to corroborate some of the details given by Brown from his own knowledge. But appellants contend that Maxwell's affidavit based on information from Brown failed to reveal that Brown was known by agent Maxwell to be unreliable.

Appellants argue that the government knew the following facts but omitted them from the application to Judge Haight: Brown was continuously in a neck brace and was often in a great deal of pain (he had been in two car accidents); he had been beaten by state authorities and was afraid of being returned to state custody for fear of additional beatings; he was asking the government to arrange to get him medical treatment; his speech was often disjointed and his answers under questioning were wandering, garbled and unresponsive; he had suffered a "psychotic" episode in his cell December 6, 1981; and he had lied repeatedly in his discussions with the FBI agents, often changing his story in response to their prompting. They contend these same facts were conspicuously absent from the government's requests for extensions of the order and that, in addition, the agents failed to mention Brown's apparent jail suicide attempt when he cut his arms and face on a lightbulb. In the later applications, the defendants assert, the government further relied on information the agents obtained from Yvonne Thomas, who also allegedly showed signs of severe mental problems.

To successfully challenge a search warrant based on the allegations set forth in the underlying affidavit, an objectant must show by a preponderance of the evidence that the affidavit contained false statements that were material on the issue of probable cause. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The statements alleged to be false must be shown to have been made intentionally, knowingly, or with reckless disregard for the truth. Id. at 155-156, 98 S.Ct. at 2676-2677. Omissions from an affidavit that are claimed to be material are governed by the same rules. United States v. Mankani, 738 F.2d 538, 545-46 (2d Cir.1984). See Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684-85.

With respect to the information obtained from Brown, the affidavits omitted no material facts. The trial judge, in a thorough opinion that disposed of defendants' pretrial motion, United States v. Shakur, 560 F.Supp. 318, 337 (S.D.N.Y.1983), found: the FBI agents saw Brown's medical records, id. at 335; Brown's "only manifested signs of illness were disjointed and agitated speech," id. at 331; there was no evidence that the agents were engaged in intentional misconduct, id. at 332 n. 16; the FBI did not coerce Brown--either through mistreatment or through threatening to withhold requested medical care, id. at 333; Brown's attorneys never attempted to obtain psychiatric help for him, id. at 336; the incident in which Brown cut himself on a lightbulb was not a suicide attempt and was not evidence of a serious mental illness, id. at 336; and the effects of the alleged beatings by state officials were too attenuated at the time he was questioned by federal officials to have affected Brown's reliability, id. at 333. A district court's findings of fact after a Franks hearing are subject to the clearly erroneous rule, and we find no reason to disturb Judge Duffy's findings on these matters. See ...