US v. Shakur
| Decision Date | 29 July 1988 |
| Docket Number | No. SSS 82 Cr. 312 (CSH). 84 Cr. 220 (CSH).,SSS 82 Cr. 312 (CSH). 84 Cr. 220 (CSH). |
| Citation | 723 F. Supp. 925 |
| Parties | UNITED STATES of America v. Mutulu SHAKUR, et al., UNITED STATES of America v. Marilyn BUCK, Defendant. |
| Court | U.S. District Court — Southern District of New York |
COPYRIGHT MATERIAL OMITTED
Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. (Kerri L. Martin, Elliot B. Jacobson, of counsel), New York City, for the U.S.
Chokwe Lumumba, Detroit, Mich., Jesse Berman, New York City, for defendant Shakur.
Judith L. Holmes, Jill Elijah, New York City, for defendant Buck.
This opinion resolves various post-trial issues.
After almost six months of trial, on May 11, 1988 and on the seventh day of deliberations, the jury convicted both defendants on all counts.
On June 7 the foreperson of the jury, Ms. Carter, telephoned Chambers and advised a law clerk that an investigator for the defendants had telephoned her at work, requesting an interview to discuss the jury's deliberations. Ms. Carter asked the Court for advice. I instructed her not to participate in such an interview pending further instructions from the Court. I then issued a Memorandum Opinion and Order dated June 7, 1988, 1988 WL 61957, familiarity with which is assumed. Counsel for the parties appeared at a hearing on June 8. Counsel for defendants said they had "some very specific things we would like to inquire of the jurors about," which they wished to explain in an ex parte application. June 8, 1988 hearing at Tr. 34. Over the government's objection, I agreed to hear defense counsel ex parte.
The ex parte hearing was convened immediately. Chokwe Lumumba, Esq., co-counsel for defendant Shakur, stated: Id. at 67. The continuing colloquy revealed that the witnesses in mind were Ahmed Obafemi, whose earlier name was Jesse Dixon, and Fulani Sunni-Ali, whose former name was Cynthia Boston. Both these individuals appeared as defense witnesses.
As to Obafemi, defense counsel stated that in a post-verdict critique, Obafemi told counsel that when he testified, he recognized Ms. Carter, one of the jurors, as someone he had known under the name of Janet McClellan when both lived in New Rochelle.
Defense counsel made other points during the ex parte hearing which I need not presently discuss.
In a Memorandum Opinion and Order dated June 9, 1988, 1988 WL 64845, familiarity with which is also assumed, I rejected certain defense requests. As to Ms. Carter's possible acquaintance with Mr. Obafemi, I made counsel aware that during a telephone conversation between Ms. Carter and the deputy court clerk, Ms. Szalay, a day or so after the verdict, Ms. Carter stated that she had recognized in Obafemi the "Jesse Dixon" she had known in high school in New Rochelle. Ms. Carter also mentioned to Ms. Szalay that another trial juror, Floyd Mitchell, had during the course of the trial related to other jurors a meeting he had had with a Mr. Douglas, a prospective juror who was not selected as a trial juror. The Court also made that fact known to counsel in its June 9, 1988 opinion.1
The transcript of the June 8, ex parte hearing was released to government counsel. Briefs were directed with respect to what, if any, further steps should be taken.
The government, based upon its review of the June 8 ex parte application, argued in a letter brief dated June 17 that under Second Circuit authority no further inquiry was justified or required in respect of any of the three subjects: Carter's acquaintance with Obafemi; the Mitchell-Douglas encounter; and defendants' contention that Carter might have known Fulani Sunni-Ali (or Cynthia Boston). In the alternative, the government argued that if any inquiry were to be held, it should begin with the testimony of Obafemi on what the government characterized as the issue of waiver. The government was strongly skeptical of defense counsel's claim during the June 8 ex parte hearing that Obafemi, recognizing Carter in the jury box as a former acquaintance when he testified in April, said nothing to defense counsel about that recognition until after the verdict had been returned.
In a Memorandum Opinion and Order dated June 29, 1988, 1988 WL 70299, familiarity with which is also assumed, the Court concluded that some factual inquiry should be held. I held there was no basis for inquiry concerning Sunni-Ali. As to Obafemi, I directed that he testify in camera on the question of waiver. I amended that direction to permit counsel and the defendants to be present when Obafemi testified in the courtroom. Counsel were also permitted to suggest questions to the Court prior to and during the examination, which the Court conducted. That testimony was taken on July 13, 1988.
The June 29, 1988 Order deferred any inquiry of Ms. Carter until Obafemi had testified. I declared my intention in that Opinion to interrogate juror Mitchell in camera with counsel being permitted to file suggested questions. At the same time I directed counsel to file suggested questions of Ms. Carter, should I decide to interview her in camera. In conducting in camera interrogations of jurors, after considering counsel's suggested questions, I followed the procedure approved in United States v. Calbas, 821 F.2d 887, 896 (2d Cir.1987).2
Subsequent to Obafemi's testimony, but without having resolved the issue of waiver, I thought it best to interrogate Ms. Carter, and did so in camera.
Upon the record thus made, counsel have submitted further briefs and oral argument. Defendants contend that, on this record, they should be granted a new trial. In the alternative, defendants call for further interrogation of the two jurors questioned thus far, all the other jurors, the prosecutors, and members of the Court's staff. The government contends that the motions for new trial should be denied, and that no further inquiry is justified or required.
I turn to a detailed consideration of these incidents.
The defense witnesses called at trial included two former residents of New Rochelle: Ahmed Obafemi and Fulani Sunni-Ali. At the time they lived in New Rochelle, Ahmed Obafemi's name was Jesse Dixon. Fulani Sunni-Ali's name was Cynthia Boston.
At the beginning of the voir dire, prospective jurors were given a questionnaire. The questionnaire included the names of individuals suggested by the prosecution and defense. Each prospective juror was asked to "look carefully" at the list of names, and indicate (by checking "yes" or "no") whether "any of these names are familiar to you in any way." Questionnaire at 9-11. Defendants included the names Fulani Sunni-Ali and Cynthia Boston in the questionnaire. They did not include the names Ahmed Obafemi and Jesse Dixon. Ms. Carter answered "no" to all the names listed.
After filling out the questionnaires, prospective jurors were chosen by lot and questioned individually by the Court in the presence of the defendants, their counsel, and the prosecutors. From the questionnaire and the subsequent questioning of Ms. Carter, it developed that she was born in New Rochelle; is a resident of Westchester; and is married.
The reference to New Rochelle prompted Mr. Lumumba, counsel for Shakur, to telephone Obafemi and members of Obafemi's family "to find out if in fact they knew a Janet Carter." Transcript of June 8, 1988 ex parte hearing at 68. As noted, Obafemi had lived in New Rochelle under the name "Jesse Dixon." Members of his family still lived there. The defense wanted to learn more about this prospective juror. When a comparable defense effort came to the Court's attention (See Point B, infra), the Court instructed counsel to make no further inquiries about prospective jurors, leaving jury selection to the formal voir dire process.
During his inquiries concerning Janet Carter, Mr. Lumumba reached Obafemi in California, where Obafemi was travelling. Lumumba also spoke to members of Obafemi's family. The name "Janet Carter" was not familiar to any of them.
When Obafemi returned from California, the trial was in progress and Carter had been seated as a juror. Obafemi came to the courthouse and asked Lumumba what it was he had wanted of him. Lumumba told Obafemi that "I had wanted to inquire of you if you knew this particular person who was on the jury, because she comes from New Rochelle and I know that you have a long history in New Rochelle." June 8, 1988 transcript at 72. But Lumumba testified that he indicated to Obafemi that under the Court's ruling, "there is no further inquiry we can have of anybody or and no further discussion that we can have with anybody on any of these jurors." Ibid.
Obafemi was a "regular attendant" of the trial, which lasted just under six months. He was there for the opening speeches of counsel; he was there the day before the verdict; all told, he attended the trial at least "a third of the time." July 13, 1988 testimony of Obafemi at Tr. 5-6.
Obafemi testified that, passing Carter in the hall one day, her face seemed familiar. However, he positively recognized Carter as someone he had known before when, on April 13, Obafemi took the stand as a defense witness. Obafemi then recognized Carter as someone he had known in New Rochelle under the name Janet McClellan.
Obafemi completed his testimony and left the witness stand on April 13. He testified that he did not tell Lumumba, either defendant, or any other defense counsel that while testifying he had recognized a juror as one who had known him when he lived in New Rochelle. Obafemi explained his silence on the point by "a combination of things"; first,...
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