United States v. Edmons
| Decision Date | 05 October 1970 |
| Docket Number | Dockets 34266-34272.,No. 876-882,876-882 |
| Citation | 432 F.2d 577 |
| Parties | UNITED STATES of America, Appellee, v. Fred Junior EDMONS, also known as Dawud Abdul Rahman, Carlton Kelly, also known as Umar Abdur Rasheed, Lamon Hamp, also known as Muser Abdul Malik, Robert R. Williams, also known as Saloudin Abdul Salam, Eddie Gibson, also known as Safwan Abdullah, Eugene C. Spencer, also known as Husain Abdul Mahmood, Ronald Oliver, also known as Muhammad Abdul Lateef, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
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David G. Trager, Asst. U. S. Atty. (Edward R. Neaher, U. S. Atty., for the Eastern District of New York, Brooklyn, N. Y., and Daniel M. Armstrong, Asst. U. S. Atty., of counsel), for appellee.
Victor Rabinowitz, New York City, for defendants-appellants.
Before FRIENDLY, SMITH and HAYS, Circuit Judges.
The appellants from this judgment of conviction after a verdict, in the District Court for the Eastern District of New York are Orthodox Moslems. They refer to themselves and each other by Arabic names, as their counsel also did on many occasions during the trial. The law enforcement officers who testified against them and the prosecutor generally used their Christian names. On appeal both counsel have done the latter save in the case of Carlton Kelly who is almost always referred to as Rasheed. We shall follow counsels' usage.
The convictions were on three counts of an indictment. All seven appellants were found guilty of having violated 18 U.S.C. § 111 by forcibly opposing, impeding and interfering with special agents of the F.B.I. in the performance of their duties. Edmons, Rasheed, Hamp, Gibson and Spencer were found guilty of having violated the same section by forcibly assaulting F.B.I. agents; Williams and Ronnie Oliver were not named in that count. Six appellants were found guilty of having violated 18 U.S.C. § 752(b) in aiding and assisting in the escape of a person lawfully arrested on a warrant charging the commission of a felony while such person was in the custody of the F.B.I.; there was a disagreement about Ronnie Oliver's guilt.1
The facts are dramatic. Late in the afternoon of November 6, 1968, four special agents of the F.B.I. — Mulhall, Jones, Good and O'Brien — went to 327 Sumpter Street, Brooklyn, to execute a warrant for the arrest of Reggie Oliver for a violation of the Selective Service Act. The agents wore work or sports clothing, and utilized an unmarked sedan and a panel truck marked "Ajax Plumbing & Supply." Oliver's description was known to them and one of the agents carried his photograph.
As darkness approached, they observed Oliver leave the premises and then return, after which a third floor apartment was lighted. When he did not emerge, the agents entered the building and knocked on the apartment door. Oliver's wife, Shirley, answered; the agents inquired as to his whereabouts and explained they were with the F.B.I. Oliver's sister-in-law, Leslie May, allegedly the owner of the apartment, then appeared; she was shown their credentials and told of the warrant for Oliver's arrest. When she refused to allow them to enter, the agents pushed their way in. After having partially subdued the women, who had struck them with a staff and a hammer, they found Oliver and informed him of the arrest warrant. The women became vociferous and Oliver began shouting in some foreign language, presumably Arabic. A violent struggle, with the women joining in, ensued, and a shot went through the ceiling when Oliver tried to kick Mulhall's gun out of his hand. Finally O'Brien succeeded in putting handcuffs on Oliver, who then said to the women in English, "Get the brothers." Leslie May passed the message on to Shirley Oliver, who immediately ran out of the apartment.
As the agents left the building with Reggie Oliver, who was still struggling, they were confronted by defendant Rasheed, armed with a long stick. Some ten or twelve persons were on the street or just coming around the corner; Shirley Oliver was with them. The agents identified themselves to the crowd both orally and by showing their credentials, and attempted to take Reggie Oliver across the street to the panel truck. By this time the mob had grown to some 40 to 50 persons; they surrounded the truck, shouted the epithets now all too commonly applied to law enforcement officers, and threatened to kill the agents if their "leader" were not released. Many carried clubs, long sticks and machetes; the agents were pushed, shoved and assaulted. They again displayed their F.B.I. credentials and proclaimed their identity, but to no avail. After a few minutes Mulhall succeeded in extricating himself in order to get help from the city police.
At one point defendant Edmons made a motion as if to draw a gun, and agent O'Brien drew his in response. In doing this he released his hold on Reggie Oliver who struck him, broke loose and escaped into the crowd; he was last seen walking off with his wife, his sister-in-law and others.
A few moments later agent Mulhall returned with the police. Rasheed and Edmons were arrested then and Hamp was arrested then or shortly thereafter. A holster and a pouch of bullets were found on Edmons and a revolver was located in the rear seat of the police car in which he had been brought to the station house.
Seeking Reggie Oliver and those who assisted his escape, F.B.I. agents, including O'Brien, visited the area later that evening. After searching Leslie May's apartment, where O'Brien allegedly met Gibson on the front stoop, they headed for a building at 240 Sumpter Street, one block away. When no one responded to their knocking at the first floor apartment, they broke down the door and conducted a search. Then with guns drawn, the agents proceeded up the hallway steps to a Moslem mosque on the top floor, which they were permitted to enter. Ronnie Oliver and allegedly Spencer and Williams were there but were not arrested.
Quite understandably the F.B.I. considered itself obliged to make further efforts to locate Reggie Oliver and others who had engaged in this outrageous affair. Our concern is with the method used. Next morning at the F.B.I. headquarters some 50 or 60 agents gathered at a meeting chaired by supervisory officials. The agents were informed about the affray and were sent back to the neighborhood with directions to proceed to 240 Sumpter Street. The apprehension of Reggie Oliver, whose photograph was distributed, and the two women was the prime objective. However, one agent conceded having been told that if they found any others who had taken part in the assault, they could make arrests for failure to have identifications, notably Selective Service cards. Just how they were to locate such persons is not apparent. None of the four agents who had been the victims of the assault accompanied them, Mulhall, Jones, and O'Brien being busy with the arraignment of the three defendants arrested on the previous evening, and they were given no description except that the members of the mob were young and black.
Early in the afternoon the agents returned to headquarters with five prisoners, appellants Williams, Gibson, Spencer and Ronnie Oliver, and one Pacheco. All had been arrested for failure to have Selective Service cards in their possession, although several asserted these were available in their homes nearby.2 No effort was made to take the men before a United States Commissioner after they had been fingerprinted and photographed. Some were not questioned; others were interrogated about Reggie Oliver and the events of the preceding evening. Between 3:30 P.M. and 5:15 P.M. Mulhall, Jones, and, a bit later, Good returned to F.B.I. headquarters from other assignments; O'Brien, who had suffered most severely on the previous evening, went home directly from the courthouse in Brooklyn. When the three agents arrived, Gibson and Williams were in a large room where a number of agents had their desks, Spencer was in one interview room, and Ronnie Oliver and Pacheco in another. Mulhall immediately recognized all but Pacheco as having participated in the affray. Jones told Mulhall that he also recognized Gibson and Williams; he thought Ronnie Oliver "looked like the individual who walked up to Agent O'Brien that night of the 6th and asked him `Where are you taking my brother?,'" but was not positive of his ability to identify either Oliver or Spencer. Good was positive about Spencer and thought the others were part of the mob but was not certain about this. The Commissioner's office having then closed for the day, the prisoners were detained over night and, except for Pacheco, were arraigned the next morning on charges of assaulting and interfering with a federal agent. Agent O'Brien saw the four appellants then. He said that he was positive with respect to Williams; that he thought Ronnie Oliver resembled an individual who grabbed him but could not be sure; that Spencer "strongly" looked "like a person who was in the mob"; and that he could not identify Gibson. The net of all this is that Mulhall, whose presence at the scene was shortest in duration, was positive with respect to all four appellants, Jones with respect to Gibson and Williams, Good with respect to Spencer, and O'Brien with respect to Williams.3 Thereafter Mulhall and O'Brien returned to the Sumpter Street area but made no further arrests.
At the trial the four appellants arrested on the morning after the affray claimed they had been in the Moslem mosque when it occurred; Edmons, Rasheed and Hamp admitted having been present but denied having participated in the mob's action and having known that the F.B.I. agents were what they were.
It is contended on behalf of the four appellants taken to the F.B.I. headquarters that the identification testimony of all the agents should have been excluded as the fruit of an unlawful...
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