U.S. v. Lemon
| Citation | 723 F.2d 922,232 U.S. App. D.C. 396 |
| Decision Date | 05 December 1983 |
| Docket Number | No. 82-2327,82-2327 |
| Parties | UNITED STATES of America v. Edward LEMON, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Criminal No. 82-00234).
Charles J. Ogletree, Washington, D.C., with whom Randy Hertz, A. Franklin Burgess, Jr. and James W. Klein, Washington, D.C., were on brief, for appellant.
Natalia M. Combs, Washington, D.C., a member of the Bar of the District of Columbia Court of Appeals pro hac vice by special leave of Court, with whom Stanley S. Harris, U.S. Atty., Michael W. Farrell and Doug J. Behr, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.
Before WALD and EDWARDS, Circuit Judges, and McGOWAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WALD.
Edward Lemon pleaded guilty to interstate transportation of falsely made, forged and altered securities in violation of 18 U.S.C. Sec. 2314. He appeals from the district court's sentence of 16 months to four years imprisonment. Lemon claims that the sentencing judge improperly relied on the government's inaccurate and unreliable representations about his alleged membership in a group known as the Black Hebrews, in violation of the due process clause of the fifth amendment and the first amendment guarantee of freedom of association. Because we find that the sentencing judge appears to have placed considerable weight on information of insufficient reliability to satisfy due process, and to have considered certain factors in a manner impermissible under the first amendment, we vacate the sentence and remand to the district court for resentencing.
Lemon was charged in an indictment on August 5, 1982, with two counts of interstate transportation of a stolen security in violation of 18 U.S.C. Sec. 2314. In opposition to the defendant's motion for more lenient conditions of pretrial release, the prosecution filed a memorandum alleging that the defendant was a member of the Black Hebrews and that the defendant's association with this sect militated against release on bond because members of the group had a substantial history of fugitivity. 1 At a hearing on that motion, the prosecutor described the Black Hebrews as follows:
The sect purports to be a religious organization or a quasi-religious organization, the belief being that its members are descendents ... from one of the original tribes of Israel, and there is a community living in Israel at this moment. 2
The defendant denied membership in the group and objected to the prosecution's attempt to establish "guilt by association." 3 The court denied the defendant's pretrial release motion on September 20, 1982. On September 29, 1982, Lemon entered a guilty plea to one of two counts in the indictment. In pleading guilty, Lemon admitted knowingly depositing in his bank account on December 23, 1981, a forged check in the amount of $5,000 from the Perseco Company. 4 In exchange for Lemon's guilty plea, the government dropped the remaining count, which involved a similar transaction with a check from the "Double J" Welding Company. 5 The court set a sentencing date of October 28, 1982.
In its memorandum on sentencing, the prosecution renewed its charges that Lemon was a member of the Black Hebrew sect and that his crime was part of a pattern of crimes committed for the benefit of the Black Hebrew community. 6 The prosecution argued that, although it was his first offense, the defendant should be given a substantial sentence because it would deter him and others involved in the group from such illegal activity, and because the defendant had failed to respond to the prosecution's request that he cooperate in its investigation of illegal activity among the Black Hebrews. 7
In support of its allegations that Lemon was a member of the Black Hebrews and committed his offense for the benefit of the group, the government referred back to its memorandum on the bond review motion, which stated:
The defendant, at the time of his arrest was in the company of Bruce Green and Bruce Stewart both of whom have been identified through sources as members of the Black Hebrews. Green was wanted, at the time of the defendant's arrest, for a check charge in Alexandria, Virginia. Stewart is alleged to be the boyfriend of Warrena Bostick who has been identified as a Black Hebrew, and who is wanted for a burglary in the District of Columbia in which a quantity of blank airline tickets were stolen.
The car in which the defendant was riding in at the time of his arrest was registered to Beverly Caro another suspected Black Hebrew. Ms. Caro has been observed by members of law enforcement at a meeting house frequented by Black Hebrews and a convention of Black Hebrews.
The checks the defendant is alleged to have deposited in his account are the same as the checks allegedly used in a similar scheme by Angela Kegler. Kegler, at the time of her arrest, was attending a meeting of the Women's Auxiliary of the Kingdom of God (the Black Hebrews) and she was dressed in the garb of the sect.
Terry Warr has also been accused of passing one of the stolen checks from "Double J" Welding Company. Warr has been identified as a member of the Black Hebrew sect.
The defendant used the address 4455 G Street, S.E., as his address when arrested in Ohio. The address on G Street has been identified as a clandestine meeting house for members of the Black Hebrews sect and numbers of known members of the sect have been observed frequenting that location in the past. 8
Counsel for the government made additional claims in its sentencing allocution:
a) Myrtle Washington, a twice convicted felon and a member of the cult has been in court monitoring the progress of the defendant's case;
b) Terry Warr has been arrested for a scheme similar to the defendant's involving a Double J Welding check. Warr is a self-admitted member of the Black Hebrews. 9
The government argued that the defendant's alleged membership in the Black Hebrews was significant to sentencing because his crime was part of a larger pattern of economic crimes committed by Black Hebrews to fund their "repatriation" to Israel. The government again referred to its earlier bond review memorandum:
A number of members of the Black Hebrew sect are fugitives from justice.
The FBI lists at least twenty-four individuals, identified as Black Hebrews, who are currently being sought on arrest and bench warrants.
Black Hebrews involved in criminal activity commonly tend toward crimes of fraud including stolen airline tickets, fraudulent credit card use, and bank fraud. These types of crimes give them the ability to move freely throughout the United States with little or no actual cost to them. Further, a number of the Black Hebrews have been identified as having obtained passports fraudulently.
The execution of search warrants at known Black Hebrew premises have led to the discovery of numerous bogus identifications many of which matched credit cards and/or checks discovered at the same time.
The Black Hebrews have houses throughout the United States where a fugitive can receive food, clothing and shelter.
Source information indicates that Black Hebrews charged with crimes in the United States are provided with the wherewithall, i.e., money and documents necessary to take them to Israel where a Black Hebrew community is currently residing, many of whom are fugitives. 10
The government attached to its sentencing memorandum a collection of newspaper and magazine articles concerning the Black Hebrews, their beliefs and organization, as well as their alleged involvement in illegal activities. On the basis of the above information, the government argued that, "given the personal and group motivations for this crime ... a substantial period of incarceration is required as a determent [sic] to future conduct of this type by the defendant and others involved with him." 11
In addition to the information presented in the government's memoranda, the court had before it a presentence report, the contents of which were summarized for the defendant by his counsel, and a letter from the defendant to the judge. The presentence report notes that both Lemon's former employer and a friend, when questioned by the probation officer, stated that they were aware that Lemon had some association with the Black Hebrews. 12
The report, together with the defendant's letter, also describes Lemon's family background, education and employment history, and includes Lemon's own explanation of why he left his job, why he resorted to committing this offense, and how he obtained the stolen checks. To summarize briefly, Lemon described his upbringing as strongly achievement oriented, driving him toward a scholarship to an exclusive preparatory school and successful completion of a college education. After many years with the Howard University radio station (WHUR), Lemon said that he had become disappointed with the decline, under changing management, of the innovative and pioneering style that he had originally found so stimulating. As these policy differences developed, he began to lose interest and his performance declined. After he left the station for free lance work in December, 1980, 13 his financial condition deteriorated. Rather than ask his family for help, and thus admit to them that his career and financial condition had faltered, he finally resorted to illegal conduct when a lucrative opportunity presented itself. Lemon stated that two checks totaling $9,500 were offered to him by someone to whom he paid $1000 for each check when it cleared his account. He did not identify that person, but he did say...
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