US v. Kikumura, Crim. No. 88-166.

• Decision Date: 10 February 1989
• Docket Number: Crim. No. 88-166.
• Parties: UNITED STATES of America v. Yu KIKUMURA, a/k/a "Masatoshi Kishizono".
• Court: U.S. District Court — District of New Jersey

706 F. Supp. 331

UNITED STATES of America v. Yu KIKUMURA, a/k/a "Masatoshi Kishizono".

Crim. No. 88-166.

United States District Court, D. New Jersey.

February 10, 1989.

Samuel A. Alito, U.S. Atty. and John P. Lacey, Asst. U.S. Atty., Newark, N.J., for the Government.

William M. Kuntsler and Ronald L. Kuby, New York City, for defendant.

SENTENCING OPINION

LECHNER, District Judge.

Introduction

On April 12, 1988, Defendant Yu Kikumura ("Kikumura") was detained by New Jersey State Trooper Robert Cieplensky ("Trooper Cieplensky") for a motor vehicle violation. As a result of the ensuing exchange between Trooper Cieplensky and Kikumura, Trooper Cieplensky saw several cylinders of gunpowder and lead shot on the backseat of Kikumura's car. Trooper Cieplensky searched the interior of Kikumura's car and found three homemade bombs, along with the bag of lead shot and gunpowder cannisters.

Kikumura was indicted for unlawful possession (by an illegal alien) and transportation of explosives with intent to destroy property and harm individuals, unlawful possession of explosives which were unregistered and without serial numbers and violations of the passport and visa laws.

Following several months of adjournments because of previous engagements of counsel for Kikumura, this matter was scheduled for trial on November 28, 1988. At that time defense counsel made several motions in addition to other pretrial motions which had been previously decided. At the end of the hearing caused by the newly filed Kikumura motions, the attorneys for Kikumura, William M. Kuntsler and Ronald L. Kuby, proposed the Government and Kikumura enter into a stipulated set of facts and that Kikumura waive trial by a jury. November 28, 1988 Transcript ("Nov. 28 Tr. —") at 155 to 161.

Mr. Kuntsler argued "there is no dispute by Kikumura as to what the proof will be at trial." Nov. 28 Tr. at 155. See also Nov. 28 Tr. at 156 to 161. Mr. Kuntsler further explained:

We would be willing to say that the defendant would stipulate—we would agree to a stipulated set of facts, that he had the devices the bombs. We wouldn't stipulate exactly where in the car, but he had the devices, they had no serial numbers, he had no permits, they were explosive devices and an expert brought in here would so testify, et cetera. Stipulate (sic) all of the moving facts that led to the indictment....

Nov. 28 Tr. at 156.

Mr. Kuby was more specific and forceful. He stated:

I mean, did he have the bombs? Well, yes, Judge, he had the bombs. Did they have serial numbers? No, they didn't have serial numbers, nor were they registered with the National Firearms Registration Bureau....

. . . . .

We're talking about stipulating to all of the material facts....

. . . . .

Let's waive the jury, we'll stipulate the facts before your Honor, the Government will presumably be forced to agree with the stipulations since it will be based on their indictment, and while I don't really care very much about saving the taxpayer's (sic) money,¹ it does in my view, save my client's dignity that we are not dragged through a proceeding which, while appearing to be very full and very fair, in reality is meaningless because of the particular facts of the case.

Nov. 28 Tr. at 158-59.

Mr. Kuntsler then concluded by stating:

All we want to do is preserve the appellate points and I think a stipulated agreement on facts before your Honor as the trial judge, without a jury, you will then find in favor of the Government, as you must on the stipulated facts, and he will have his appeal.

28 Nov. Tr. at 160-161 (emphasis added).

The specific charges on which Kikumura was convicted were as follows: transportation and receipt of explosive materials in interstate commerce without having obtained a proper license or permit, in violation of 18 U.S.C. § 842(a)(3)(A) (Count 1); transportation and receipt and the attempted transportation and receipt of explosives in interstate commerce, with the knowledge and intent that those explosives would be used to damage real or personal property, in violation of 18 U.S.C. § 844(d) (Count 2);² possession of a firearm and ammunition by an illegal alien, in violation of 18 U.S.C. § 922(g)(5) (Count 3); the unlawful possession of unregistered firearms, in violation of 26 U.S.C. § 5861(d) (Counts 4, 5 and 6); possession of firearms, each of which was not identified by a serial number, in violation of 26 U.S.C. ¶ 5861(i) (Counts 7, 8 and 9); use and attempted use of an altered passport, in violation of 18 U.S.C. § 1543 (Count 10); use and attempted use of a passport issued and designed for the use of another, in violation of 18 U.S.C. § 1544 (Count 11); and possession of a nonimmigrant visa which had been procured by fraud, in violation of 18 U.S.C. § 1546(a) (Count 12).

The statutory penalties to which Kikumura is now exposed total one hundred years in prison, fines of several million dollars plus a supervised release term of three years. In addition, pursuant to 18 U.S.C. § 3013, a special monetary assessment in the amount of $50.00 per count must be imposed.

Kikumura has been in custody since his arrest on April 12, 1988 and most likely will be deported by the United States Immigration and Naturalization Service upon completion of his term of imprisonment.

The Department of Probation has computed on a count-by-count basis an adjusted offense level and has made a multiple count adjustment for the charges for which Kikumura has been found guilty to arrive at a total offense level. Based upon a criminal history of one and a total offense level of eighteen, as computed by the Probation officer, the guideline imprisonment range pursuant to the Sentencing Commission Guidelines Manual (the "Guidelines Manual") and the Sentencing Reform Act, 18 U.S.C. § 3551 et seq., (the "Act") is imprisonment for a total of from twenty-seven to thirty-three months for all twelve counts. A term of supervised release of not less than two and not more than three years on all counts is required. The fine range is from $6,000.00 to $60,000.00. The special monetary assessments total $600.00.

After considering all of the aspects of this case surrounding the finding of guilt on all twelve counts, including the aggravating factors concerning these offenses, and finding the Sentencing Commission did not adequately consider (and in fact did not consider) the kind or degree of the conduct at issue or the type or kind of individual who committed these offenses, it is, therefore, ADJUDGED, in Criminal Case 88-166 that the defendant, Yu Kikumura, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of thirty years, 360 months. This term consists of terms of ten years, 120 months on each of counts one and two, to run concurrently with each other, five years, 60 months, on count three to run consecutively to the sentence imposed on counts one and two, ten years, 120 months, on each of counts four through nine to run concurrently with each of counts four through nine but consecutively to the sentence imposed on count three, five years, 60 months, on each of counts ten through twelve to run concurrently with each of counts ten through twelve but consecutively to the sentence imposed on counts four through nine. A term of supervised release of three years and a special monetary assessment in the total amount of $600.00 are imposed. No fine will be imposed.³

There are four special conditions to this sentence of supervised release: (1) upon expiration of the period of confinement, Kikumura shall be delivered to the appropriate authority for deportation purposes; (2) Kikumura shall not commit any local, state or federal offense or crime; (3) Kikumura is to observe all conditions of supervised release; and (4) once deported, Kikumura is not to re-enter the United States, its territories or possessions unless previous written permission is obtained from the Attorney General of the United States or his authorized representative.

I have departed from the sentencing guidelines in this case pursuant to 18 U.S. C. § 3553(b). A sentencing court may impose a sentence outside the range established by the applicable guidelines if it is found that an aggravating or mitigating circumstance of a kind, or to a degree, exists which was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines. Id. Fourteen criteria have been established by the Guidelines which are to be followed in departing from guideline sentencing. Guidelines Manual §§ 5K2.0—5K2.14. The circumstances warranting departure, by their very nature, cannot be exhaustively listed. Guidelines Manual § 5K2.0 at 5.36. As further noted in the Policy Statement concerning the grounds for a departure: "The controlling decision as to whether and to what extent departure is warranted can only be made by the court at the time of sentencing." Id.

A. Facts

The following are the facts, as I have found them,⁴ after taking into consideration the data presented at the suppression hearing, the trial facts, as stipulated by Kikumura, the testimony at the sentencing hearing and other reliable evidence offered at the sentencing hearing.

In summary, Kikumura is a member of the Japanese Red Army ("JRA"), a violent terrorist organization; he has trained other members of the JRA and received training from the JRA; he has engaged in a course of terrorist conduct in Holland concerning explosives which caused his arrest; he meticulously planned, schemed and attempted to execute a terrorist mission in this country with remarkable skill and deliberation; and he planned to kill and seriously injure scores of people. But for the alert and professional conduct of Trooper Cieplensky, Kikumura would have succeeded in murdering and maiming countless numbers of people—for no reason other than they are Americans.

Kikumura's Background, Character and Conduct

As early as 1984, a confidential informant (the "informant"...