U.S. v. Rosenberg

• Decision Date: 10 May 2000
• Docket Number: No. SSS 82 CR. 312(CSH).,SSS 82 CR. 312(CSH).
• Citation: 108 F.Supp.2d 191
• Parties: UNITED STATES of America, v. Susan ROSENBERG, Defendant.
• Court: U.S. District Court — Southern District of New York

Page 191

108 F.Supp.2d 191

UNITED STATES of America, v. Susan ROSENBERG, Defendant.

No. SSS 82 CR. 312(CSH).

United States District Court, S.D. New York.

May 10, 2000.

Mary Jo White, U.S. Atty., Andrew C. McCarthy, of counsel, New York City, for U.S.

Williams & Connolly, Washinton, DC, Howard W. Gutman, Thomas G. Fentoff, of counsel, Gordon, Altman, Weitzen, Shalov & Wein LLP, New York City, Laurence J. Zweifach, Richard Cashman, of counsel, for Defendant.

MEMORANDUM OPINION AND ORDER

HAIGHT, Senior District Judge.

On August 30, 1985, the government sought and obtained leave to file a nolle prosequi dismissing the captioned indictment in its entirety against defendant Susan Rosenberg. Nearly fifteen years later and in large part, if not solely, on account of her alleged involvement in the crimes included in the dismissed indictment, Rosenberg was denied release on parole from a 58-year sentence she is currently serving after being convicted in the District of New Jersey on unrelated charges. Perceiving this as a miscarriage of justice, Rosenberg now moves this Court to reconsider its grant of nolle prosequi and to grant appropriate relief.

I. BACKGROUND

A. The Brinks Indictment In This District

In 1982, Rosenberg was indicted in this District, along with numerous others, in United States v. Shakur, 82 Cr. 312, also known as the "Brinks case." The indictment alleged a conspiracy to commit several "fund-raisers" or armed robberies to raise money for the revolutionary activities of the conspiracy members (also known as "the Family"). Among the crimes committed by the Family were armed robberies, kidnapings, the jail break of Joanne Chesimard, and the murders of two police officers and two Brinks armored truck guards.¹ Rosenberg's alleged role was as a member of the Family's secondary team whose job was to arrange for getaway cars, safe houses, and reconnaissance.

The first Brinks trial in this Court was held in 1983, before Judge Duffy and a jury. Six of the eleven defendants named in the indictment were tried: two of the defendants were convicted on RICO counts, two were found guilty as accessories after the fact, and two were acquitted on all charges. Although maintaining her innocence of any and all of the Brinks crimes, Rosenberg became a fugitive and was not apprehended until November 29, 1984.

B. The New Jersey Indictment, Conviction and Sentence

During the time Rosenberg was at large, she allied herself with one Timothy Blunk in a conspiracy to further their revolutionary ends and political ideas. In preparation for an undefined terrorist campaign, Rosenberg and Blunk stockpiled a large amount of firearms, explosives and false identification documents and badges. Both Rosenberg and Blunk were arrested before they could carry out their destructive plan. The self-proclaimed "professional revolutionaries" were tried for these crimes in the District of New Jersey and found guilty on all counts. They did not deny their guilt, instead viewing the trial and subsequent sentencing as a forum to air their political views. They insisted on being absent from most of the proceedings, instructed their advocates to remain inactive, considered themselves political prisoners, disavowed the legitimacy of the Federal court and the United States government, and otherwise refused to cooperate in any way. On May 20, 1985, District Judge Frederick B. Lacey sentenced both defendants to 58 years in prison.²

Before imposing sentence, Judge Lacey explicitly stated that:

in sentencing I'm giving no consideration to Rosenberg's involvement, if any, in the acts and crimes charged in the Southern District of New York, wherein it's alleged that she participated in various armed robberies and murders, and among other things, the jail breakout of Chesimard. Rosenberg is still to be tried on those charges and I'm being as specific as I can be so that the prosecution and the court having jurisdiction over the matter there will know that my sentence here is not based in the slightest on any involvement that Rosenberg may have had in what is there charged.

(Tab 4, p. 46).³

The government and Rosenberg dispute the meaning of that statement. Rosenberg argues that this is clear evidence that the length of her sentence for her New Jersey crimes was never meant to include or be influenced by her alleged involvement in the Brinks case. On the other hand, the government contends that Judge Lacey merely intended to preclude Rosenberg from making any double jeopardy challenge if and when she was tried in this Court for the Brinks crimes.

The government's interpretation seems more likely, given the fact that Judge Lacey addressed his statement to the "prosecution and the court having jurisdiction over" the Brinks case, rather than to the Parole Commission. The government might even be conservative in its interpretation, since Judge Lacey was possibly seeking to foreclose not only a double jeopardy challenge, but also, lest anyone think that the Brinks crimes had already been considered, the possibility that the New Jersey sentence be used to mitigate any sentence Rosenberg might ultimately receive for the Brinks crimes.

Even if, as Rosenberg contends, Judge Lacey meant this pronouncement as a recommendation to the Parole Commission not to consider Rosenberg's alleged involvement in the Brinks crimes when determining parole eligibility, an unlikely proposition since the judge addressed the Parole Commission directly later in the sentencing and in a separate parole recommendation, (Tab 4, p. 53; Tab 5), the Parole Commission would not be bound by such recommendation. See 28 C.F.R. § 2.19(d) (1999).

Interestingly, regarding the place of incarceration, and referring to Family member Marilyn Buck's escape from prison, Judge Lacey warned, "it will be remembered that Rosenberg's `comrade', Marilyn Buck, was permitted to walk out of Alderson on a legal furlough to visit her attorney, Tipograph. Tipograph and Rosenberg are more than just attorney and client. They have been associates, companions and roommates. I am sure the Bureau of Prisons will make certain that Rosenberg does not profit from the same mistake that was made as to Buck." (Tab 5, pp. 2-3). Marilyn Buck was later convicted in this Court for her involvement in the Brinks crimes. This belies any suggestion that Judge Lacey completely disassociated Rosenberg from the Brinks case or its participants. In any event, this Court considers the statement at sentencing only for its plain meaning, that is, that the 58 year sentence was based entirely on Rosenberg's New Jersey crimes.

Aware that Rosenberg and Blunk would be eligible for parole consideration after only 10 years of imprisonment,⁴ Judge Lacey was adamant about and explicit in his view that it would be "a terrible mistake if these defendants were to be released from prison after serving only 10 years if their attitude then is as it is now." (Tab 5, p. 2; Tab 4, p. 53). Accounting for the possibility that the Parole Commission would decide at some future date that release was proper, Judge Lacey also emphasized the grave responsibility the Parole Commission would bear for any adverse consequences that might follow. Id.

C. The Nolle Prosequi of the Brinks Indictment Against Rosenberg

In spite of her behavior at and attitude toward the New Jersey trial, Rosenberg contends that she maintained her innocence of the Brinks charges and wished to prove her innocence at the second Brinks trial for which the government was preparing. Rosenberg insisted on being arraigned in this District on those charges.⁵ On August 26, 1985, while awaiting trial, Rosenberg's attorney, Susan Tipograph, made a motion on behalf of Marilyn Buck, Susan Rosenberg and Alan Berkman to consolidate their cases.⁶ (Tab 7). Buck was charged in a separate indictment and was also represented by Tipograph. Berkman, who was charged in the same indictment as Rosenberg, consented to the consolidation motion.⁷

On August 30, 1985, the government moved for leave to file a nolle prosequi against Rosenberg. In its nolle application the government cited as the basis for the nolle "the lengthy sentence imposed by Judge Lacey and his recommendation regarding parole," namely, "that `parole not be granted at the statutory maximum eligibility point of ten years.'" (Tab 8, p. 3). The Court granted the nolle without prejudice. Rosenberg maintains that the dismissal was granted over her objection, and that she was thereby denied the right to go to trial and contest the charges against her. There is no contemporaneous evidence to support this contention. Apparently, Rosenberg did object to the fact that the dismissal was granted without prejudice and moved that the nolle be entered with prejudice. By order dated September 17, 1985, Judge Duffy denied the motion as moot, reasoning that until Rosenberg was reindicted, there would be no case or controversy.⁸ It is that nolle prosequi that is the subject of the instant motion.

Rosenberg is currently serving her 58 year sentence for her New Jersey crimes, and is incarcerated in the District of Connecticut, at the Federal Correctional Institution in Danbury.

D. Rosenberg's Initial Consideration For Parole: The Parole Commission's Inquiry and the Government's Response

Pursuant to 18 U.S.C. § 4205(a), Rosenberg first became eligible for parole in 1994, after serving ten years of her term of imprisonment.⁹ In preparation for Rosenberg's first parole hearing, the United States Parole Commission sent a letter dated August 31, 1994 to the United States Attorney for this District. The substantive paragraphs of that letter read as follows:

The above-named Subject is scheduled for a hearing within the next few weeks. Commission Examiners have determined that further information is needed to conduct the hearing in conformity with the Commission procedures. The information needed is described in the following manner:

Please provide details...