United States v. Ferguson, S 82 Cr. 312.

• Decision Date: 15 November 1982
• Docket Number: No. S 82 Cr. 312.,S 82 Cr. 312.
• Parties: UNITED STATES of America, v. Cecil FERGUSON and Edward Joseph, Defendants.
• Court: U.S. District Court — Southern District of New York

550 F. Supp. 1256

UNITED STATES of America, v. Cecil FERGUSON and Edward Joseph, Defendants.

No. S 82 Cr. 312.

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

November 15, 1982.

John S. Martin, Jr., U.S. Atty., S.D.N.Y., New York City, for U.S.; Stacey J. Moritz, Robert S. Litt, Asst. U.S. Attys., New York City, of counsel.

William Mogulescu, New York City, for defendant Joseph.

Jesse Berman, New York City, for defendant Ferguson.

OPINION

EDWARD WEINFELD, District Judge.

The movant defendants are named together with others in an indictment which charges that they were engaged in a racketeering conspiracy which, among other matters, involved a series of armed robberies and murders, including what is now referred to as the Brinks robbery at Nanuet, New York, during which a Brinks guard was killed and thereafter during a getaway attempt two state troopers were also killed.¹ Other counts of the indictment charge the substantive crime of actually conducting the affairs of a criminal enterprise through a pattern of racketeering activity (18 U.S.C., sections 1962(c) and 2); robbery of a federally insured bank (18 U.S.C., section 2113(a)); and one count charges murder during the course of a bank robbery (18 U.S.C., sections 2113(d), (e) and 2).

This Court previously denied two separate motions for disqualification made by the defendants. One was based upon the ground that since this Court had granted one of the seven wiretap applications at issue, it would, on the defendants' motion to suppress the evidence derived by reason thereof, be passing upon the validity of its own previously approved order. The other was upon the ground that a former law clerk, Robert S. Litt, an Assistant United States Attorney, had recently been assigned to assist in the pending prosecution.² The Court is now presented with a third application for disqualification.

Following the denial of the first two motions, there remained for consideration a series of substantive motions which were scheduled for argument.³ One of these sought dismissal of the indictment for what the defendants termed "government abuse of the grand jury." Among other matters, the defendants charged that the prosecution had withheld from the grand jury information that an informant had recanted an extensive written statement incriminating these defendants and others. The informant is referred to as CS 1, whose real identity the defendants say is Samuel Brown ("Brown"), an alleged participant in one or more of the crimes charged against the defendants. Brown claimed the statement as well as his cooperation with the federal authorities had been the result of physical beatings, threats upon his life and other coercive conduct by agents of the Federal Bureau of Investigation ("FBI"). The basic contention with respect to the grand jury abuse charge was that although the grand jury had been informed of Brown's incriminating statements it was not advised of their repudiation.⁴ Brown's reliability is a major item in support of the defendants' separate motion to suppress evidence obtained as a result of wiretap orders and search warrants.

The prosecution, in response to the motion to dismiss for "grand jury abuse," submitted to the Court in camera a portion of the grand jury testimony. The defendants' counsel were advised of the submission but were not informed what testimony had been submitted or of its nature or substance. The in camera submission included the grand jury testimony of Mark F. Pomerantz ("Pomerantz"), then an Assistant United States Attorney. He had served as a law clerk to this Court from 1975-76.

In preparation for hearing argument of the outstanding motions, the Court read a multitude of affidavits submitted on behalf of the prosecution and defense and extensive exhibits numbering hundreds of pages and, in the process, came across the testimony of Pomerantz. The Court thereupon called an in camera session attended by the two Assistant United States Attorneys in charge of this matter, which took place Friday morning, November 5, 1982, three days before the pending motions were to be argued.⁵ The Court suggested that as a matter of fairness the United States Attorney either inform the defense counsel that Pomerantz had testified before the grand jury and the nature of his testimony or release it in its entirety. Later that day the United States Attorney decided to make the entire transcript of Pomerantz's testimony available and it was forthwith delivered to the defense.

On Monday morning, November 8, the return date for the argument of the outstanding motions, defendants made the third and current application for recusal based upon the nature of Pomerantz's testimony and his relationship to this Court. The prosecution, in opposing the application, stressed that the sole and only purpose for which the testimony had been submitted was to rebut the charge of grand jury abuse for failure to disclose Brown's repudiation of his prior incriminating statements and of his refusal to continue to cooperate with the prosecution. The government stressed that the testimony had not been submitted in opposition to the separate motions to suppress evidence. In fact, it appears that the grand jury had been informed of Brown's change by Pomerantz. However, the defendants contend, and correctly so, that Pomerantz went much beyond informing the grand jury of Brown's recantation and of his refusal of further cooperation with the federal authorities. In his opening statement Pomerantz told the grand jury that he had met Brown for the first time only the evening before together with Jane Parver, an Assistant United States Attorney, and Special Agents Robert Cordier and Kenneth Maxwell of the FBI; that Brown greeted the agents in a friendly manner; that Brown stated he remained willing to cooperate with the federal authorities in the ongoing investigation and that he discussed his previous relationship with the agents and said he had no complaints about the way he had been treated by them; that Brown referred to them as "great" or "wonderful guys" and at one point he hugged one of the agents and indicated that everything he had ever told them was "the hundred per cent truth"; that his attitude was one of friendship with the agents, and that Brown also stated that he had willingly cooperated with the FBI agents.

Pomerantz further testified that Brown acknowledged that his handwritten statement, previously referred to, was "the truth and remained the truth" and that he was prepared to continue to cooperate with the federal authorities, whereupon arrangements were made to meet the following morning. However, that morning Brown refused to meet with the prosecution authorities and a letter was delivered from him in which he stated he no longer wanted to cooperate with the government authorities or speak to its representatives. On the same morning, in a pending habeas corpus proceeding brought on behalf of Brown, attorneys representing him made similar statements. The grand jury minutes of Pomerantz's testimony establish that he explicitly informed the grand jury of Brown's change of heart; thus, the defendants' contention that the information was withheld is without factual support. Accordingly, the prosecution contends that since Pomerantz's testimony was submitted solely on the grand jury abuse issue, which upon this record has not been challenged, his credibility is not involved and inquiry should end. The prosecution therefore argues that Pomerantz's relationship to this Court is not a ground for recusal. But the defense contends that Pomerantz's testimony, although not offered by the prosecution in opposition to other motions, is likely to influence the Court's determination of those motions, particularly in view of the sharp and divergent contentions of the FBI agents and Brown.

The motion which seeks to suppress evidence derived as a result of seven separate wiretap orders covering an extensive period may be said to be the major one advanced by the defendants and is of prime importance to their interests. Essentially, it rests upon Brown's claim that his written statement, a thirteen-page document, was copied by him from one previously prepared by FBI Agents Cordier and Maxwell and was signed by him under threats of physical violence, beatings and other coercive conduct by the FBI agents. The defendants contend that the prosecution in applying for the wiretap orders failed to disclose the alleged coercive conduct to the Court; failed to inform the Court that Brown was not a reliable witness and thus that in fact there was no probable cause to justify the wiretap orders, and accordingly all evidence derived thereunder should be suppressed.⁶ The FBI agents vehemently deny Brown's charges; in addition, the prosecution points to inherent inconsistencies with respect to his allegations and notes that during the course of a state habeas corpus proceeding where he made accusations of misconduct by state authorities, neither he nor his attorney ever...