United States v. Lebron

• Citation: 222 F.2d 531
• Decision Date: 10 May 1955
• Docket Number: Docket 23458.,No. 241,241
• Parties: UNITED STATES of America, Appellee, v. Dolores LEBRON, Rafael Cancel Miranda, Irvin Flores Rodriguez, Andres Figueroa Cordero, Julio Pinto Gandia, Juan Francisco Ortiz Medina, Jose A. Otero Otero, Rosa Collazo, Juan Bernardo Lebron, Carmelo Alvarez Roman, Armando Diaz Matos and Manuel Rabago Torres, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

222 F.2d 531 (1955)

UNITED STATES of America, Appellee, v. Dolores LEBRON, Rafael Cancel Miranda, Irvin Flores Rodriguez, Andres Figueroa Cordero, Julio Pinto Gandia, Juan Francisco Ortiz Medina, Jose A. Otero Otero, Rosa Collazo, Juan Bernardo Lebron, Carmelo Alvarez Roman, Armando Diaz Matos and Manuel Rabago Torres, Appellants.

No. 241, Docket 23458.

United States Court of Appeals Second Circuit.

Argued March 17, 18, 1955.

Decided May 10, 1955.

Freedman & Unger, New York City (Abraham Unger, New York City, of counsel), for appellant Lebron.

Abraham M. Dubno, Brooklyn, N. Y., for appellant Jose A. Otero Otero.

Conrad J. Lynn, New York City, for other appellants.

J. Edward Lumbard, U. S. Atty., New York City (Milton R. Wessel, George S. Leisure, Jr., Julio E. Nunez and Thomas M. Debevoise, Asst. U. S. Attys., New York City, William S. Hundley, Sp. Asst. to the Atty. Gen., of counsel), for appellee.

Before CLARK, Chief Judge, FRANK, Circuit Judge, and GALSTON, District Judge.

FRANK, Circuit Judge.

1. The appellants urge, inter alia, that there was insufficient evidence to support the jury's finding of a conspiracy, that at most the evidence showed not one continuing conspiracy but multiple conspiracies improperly (and prejudicially) joined in the indictment, and that the prosecution failed to link each defendant with the alleged conspiracy.

Viewing the evidence, as we must, on appeal, most favorably to the government, the record shows that the Nationalist Party of Puerto Rico, once a political party, had abandoned hope of achieving Puerto Rican independence through legitimate political processes in favor of overthrowing American authority in that commonwealth by force of arms and by violence. A part of its activities was public, e. g., the circulation of pamphlets, newspapers and other propaganda urging the forcible liberation of Puerto Rico and resistance to American authority there. The bulk of the party's activities were clandestine. Groups in New York, Chicago and Puerto Rico, ostensibly operated as social clubs, were in reality "juntas," cells of the party network. The various "juntas" held secret meetings and maintained closed communication with each other by using codes and messengers of secret identity. Initiation of recruits into the "juntas" consisted of an esoteric ceremony led by party leaders in black robes. Recruits were trained in the use of rifles and pistols. Arms and ammunition were hoarded; crude bombs and Molotov cocktails were manufactured.

Periodically the party committed spectacular acts of violence. In October 1950, the party launched an unsuccessful revolution in Puerto Rico. There were simultaneous armed uprisings in two cities and against the Fortaleza, residence of the commonweath governor. At least nine lives were lost before the insurrection was quelled by native forces. Two days later, two party members attempted to assassinate Harry Truman, then President of the United States, at Blair House in Washington, D. C., where President Truman then resided. One of the President's guards and one would-be assassin were killed. The party then concentrated on a master plan for revolution in Puerto Rico encompassing occupation of military garrisons and attacks on American forces stationed on the Island. In March of 1954, four party members, all of them defendants in this case, journeyed to Washington and, from the gallery of the House of Representatives, fired upon the assembled Congressmen. Five Congressmen were wounded.

The Washington attack illustrates the close coordination of activity between juntas. The pistols used in the attack upon Congress were purchased by the Chicago junta, and delivered to the New York group. The New York group not only provided the four gunmen with their weapons but also provided the funds for their railroad tickets. Shortly before the attack, one of the defendants who had returned from Puerto Rico announced that "the master" (Pedro Albizu Campos, apparent leader of the party in Puerto Rico) wanted no communications, but rather that "the only news he wanted was what he read in the newspapers."

We think the above evidence sufficient to permit the jury to find a single continuous conspiracy operating at least from September 1950 to May 1954, the period covered by the indictment. We also think that the government has successfully linked each of the appellants with the conspiracy. Evidence from which the jury might have so concluded is set forth in the footnote.¹

2. The appellants assert an abridgment of their right to counsel because of the attendance by Raymond Sorrell, a government informer, at a conference between Conrad J. Lynn, an attorney, and several party members. The grand jury had already handed down the indictment against the seventeen, and Mr. Lynn had been retained to represent at least one defendant. Sorrell had not yet been exposed as an informer, and party members presumably regarded him as a loyal party member.

It may be that where, after indictment, a government agent or government informer intrudes on any discussion whatever between a defendant and his lawyer, the intrusion is such a violation of defendant's constitutional right to counsel that the defendant is entitled to a new trial without any proof by him that the intrusion harmed defendant, even if the intrusion was prompted by the highest motives. Caldwell v. United States, 92 U.S.App.D.C. 355, 205 F.2d 879; Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749; Cf. United States v. Venuto, 3 Cir., 182 F.2d 519; Melanson v. O'Brien, 1 Cir., 191 F.2d 963. Where the intrusion is on a conference between defendant's lawyer and prospective witnesses, with the defendant absent, the result may well be the same — provided there is proof that the conference involved a discussion of the prospective witness' testimony at the trial.

But here such proof is lacking. Sorrell, the informer, testified that he attended a meeting of the New York Junta or Board of the Party on June 14, 1954, at which Mr. Lynn was present. But Sorrell had no recollection that at that meeting anything was said concerning the defense of the defendants. Ruth Reynolds a defense witness, testified as follows as to that meeting at which none of the defendants was present:

"Q. Were you present at an apartment at 660 Riverside Drive at the end of May or beginning of June of this year at which Sorrell was present? A. I was present at a meeting there, he was present on the evening of June 14.

"Q. Was I there also? A. You were present.

"Q. If you know, will you tell me what that meeting was concerned with and who was there? A. It was a meeting called for some of the Nationalists to discuss the case in Washington and this conspiracy charge, the trial, present trial deals with, to discuss with attorney Mr. Lynn plans in relation to the ending of the case that was being tried in Washington at that moment and with this conspiracy charge, and I was present there as — I was at that time employed by you as an investigator and I was present for that reason.

"You were present, Antonio Arrera was present; Lydia Collazo was present; Esteban Anna Marie Quinones was present; I think Lolita Torresola was there.

"Q. Is Miss Lydia Collazo the daughter of Rosa Collazo, the defendant in this action? A. Yes, sir.

"Q. That\'s all. In addition to the plans for defense, was the matter of funds for the defense also discussed at that meeting? A. Yes, the meeting was concerned with how funds were going to be raised for an adequate defense."

The foregoing in no way discloses that defense counsel and any prospective witness discussed what any of the witnesses would testify at the trial.

3. Several defendants urge that the trial judge erred in refusing to sever their indictments from the others and, more particularly, from the indictment of the four gunmen who fired upon the Congressmen. In part, the claim of error is based on possible prejudice resulting from the reaction of jurors to so peculiarly heinous a crime as that indiscriminate attack. In part, it is based on the theory that the Congressional attack constitutes a separate conspiracy in which the particular defendants urging this claim are not involved. As noted earlier, we reject the theory that that attack was a separate conspiracy, and we agree with the trial judge that evidence of that attack was admissible against all of the defendants. The grant of a severance is within the discretion of the trial judge, and, where the charge against all the defendants may be proved by the same evidence and results from the same series of acts, an upper court will not interfere with that discretion. United States v. Cohen, 2 Cir., 124 F.2d 164. We think the trial judge here did not "abuse" his discretion.

4. Surprise and prejudice are claimed in the judge's denial of motions for bills of particulars. The indictment, however, was sufficiently specific to apprise defendants of the nature of the charge against them and to permit them to prepare adequately for trial. The defendants in the various questions included in their bills of particulars were, in effect, making an effort to obtain from the government a statement of its...