US v. Whitehorn, Crim. No. 88-0145 (HHG).

CourtUnited States District Courts. United States District Court (Columbia)
Citation710 F. Supp. 803
Docket NumberCrim. No. 88-0145 (HHG).
PartiesUNITED STATES of America v. Laura WHITEHORN, Linda Evans, Marilyn Buck, Susan Rosenberg, Timothy Blunk, Alan Berkman, Elizabeth Duke.
Decision Date11 April 1989

710 F. Supp. 803

Laura WHITEHORN, Linda Evans, Marilyn Buck, Susan Rosenberg, Timothy Blunk, Alan Berkman, Elizabeth Duke.

Crim. No. 88-0145 (HHG).

United States District Court, District of Columbia.

April 11, 1989.

710 F. Supp. 804
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Rhonda Fields and Margaret Ellen, Asst. U.S. Attys., Washington, D.C., for the U.S

Nkechi Taifa, Russell Canan, Milliken, Van Susteren & Canan, Daniel Meyers, Bernabei & Katz, Shawn Moore, Public Defender Service, Robert E. Morin, Fisher, Morin & Kagan-Kans and Mary K. O'Melveny, Washington, D.C., for defendants.


HAROLD H. GREENE, District Judge.

The defendants in this case — Laura Whitehorn, Timothy Blunk, Alan Berkman, Susan Rosenberg, Marilyn Buck, and Linda Evans1 — stand indicted in this Court of conspiracy2 and four counts of bombing3 the United States Capitol, the National War College Building at Fort McNair, the Computer Center at the Washington Navy Yard, and the Officer's Club at the Navy Yard,4 all in 1983 and 1984.5 With the exception of Whitehorn,6 all the defendants

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have previously been convicted in other federal courts of such crimes as conspiracy and illegal possession of firearms and explosives, and one of them, Buck, was earlier convicted of armed robbery and bank robbery killing in connection with the robbery of a Brinks armored car in Nanuet, New York. Again, all defendants but Whitehorn are now serving substantial sentences with respect to these offenses.7

The defendants8 filed a considerable number of pretrial motions, and following the filing of oppositions by the government and of defendants' replies, the Court heard oral argument on many of these motions for two days on March 16 and 17, 1989. Additional hearings — on motions requiring the consideration of evidence in addition to legal argument (e.g., motions to suppress) — will be held within the next two weeks.

In this Opinion, the Court disposes of the pending motions as follows. The first two sections deal with defendants' challenge to the entire prosecution — Prosecutorial Misconduct (Part I), and Vagueness (Part II). This is followed by five sections on procedural claims and requests — Surplusage and Bill of Particulars (Part III); Witness and Evidence Lists (Part IV); Severance (Part V): Grand Jury Minutes (Part VI); and Exculpatory Evidence (Part VII); next is a motion on Courtroom Security (Part VIII); and the final two sections discuss motions filed on behalf of only some defendants — Dismissal of Conspiracy Count (Part IX) and Double Jeopardy (Part X).

As will be seen below, and for the reasons there stated, all but one of the motions will be denied in whole or in part. The one motion the Court is granting is that which claims double jeopardy, and the indictment will be dismissed on that basis as to the three defendants (Timothy Blunk, Alan Berkman, and Susan Rosenberg) who were placed in jeopardy by their prior criminal trials and convictions based on the same evidence as that which the government expects to use in their trial on the current indictment in this Court. Part X of this Opinion discusses that double jeopardy issue.


Prosecutorial Misconduct

Initially, the defendants challenge the basic validity of the indictment in three related motions to dismiss based on claimed governmental misconduct. One of these is a joint motion of all defendants for a dismissal on account of unconstitutional delay and prosecutorial vindictiveness. In addition, defendant Rosenberg filed her own motion to dismiss because of alleged prosecutorial vindictiveness. Finally, the defendants filed a joint motion to dismiss which alleges far-ranging prosecutorial misconduct and encompasses the allegations in the other two motions. Since the Court has determined that the indictment must be dismissed as to defendant Rosenberg based on double jeopardy considerations, it will not specifically address the issues raised in her motion. Instead it will consider the specific claims of unconstitutional delay and prosecutorial vindictiveness before moving to the defendants' umbrella motion regarding misconduct.

A. Delay

Under the Due Process Clause of the Fifth Amendment, a defendant is protected in the federal courts against oppressive pre-indictment delay. United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971). The Supreme Court has established a two-part test for determining whether an indictment should be dismissed on account of such delay: (1) the delay must have caused substantial

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prejudice to the defendant's right to a fair trial; and (2) the delay must be the result of an intentional effort by the prosecutor to gain a tactical advantage over the defendant. Marion, 404 U.S. at 324, 92 S.Ct. at 465. The defendants assert that the three-year delay in this case between arrest and indictment satisfies that test

There is little doubt that the defendants have suffered some prejudice as a result of the government's delay in bringing the indictment. It is likely, for example, that the delay preceding the indictment in this case, combined with defendants' trials in other courts, has strained their emotional and financial resources. Whatever prejudice they may have suffered, however, is not nearly as great as they claim.

The most substantial prejudice resulting from the delay in this case, it is said, has been to defendants' ability to defend against the government's charges. More specifically, defendants state that because of the delay, they "are faced with the almost impossible task of trying to reconstruct their whereabouts, locate witnesses and documents and prepare a defense to events which occurred years ago."9 Were this true, this would be precisely the type of prejudice that is relevant in the post-indictment Sixth Amendment context, and it would be an important due process consideration as well. See Smith v. Hooey, 393 U.S. 374, 380, 89 S.Ct. 575, 578, 21 L.Ed.2d 607 (1969).

However, the possibility of prejudice10 is contradicted by the factual picture, for the delay in bringing the indictment in this case has not, as a practical matter, increased the defendants' difficulty in preparing for trial even close to the level of "near impossibility" that they allege. As the defendants themselves repeatedly emphasize (even in the instant motion), several of them have spent much of the last three years in trials involving many of the same issues, evidence, and witnesses as are presented in the instant case.

The blunt fact is that, because of their incarceration, the defendants have apparently been able to do little else in the last three years other than to participate in trials concerning the events surrounding the alleged bombings or to prepare for such trials. The contention that they have lost track of witnesses or are unable to reconstruct events that happened in the past therefore strains credulity, and the Court is not persuaded that the delay has caused any significant prejudice to their ability to defend against the charges in the indictment here.

Moving to the second part of the test for unconstitutional delay, the Court concludes that the government did not purposely delay the return of the indictment to gain a tactical advantage. In this Circuit, a defendant who is challenging the delay has the burden of showing that the government acted for improper purposes. United States v. Pollack, 534 F.2d 964 (D.C.Cir. 1976).11 Defendants assert that "there can be no legitimate reason for the delay ..." and that the indictment was brought when it was only to hold a club over their heads.12 That contention, too, is patently erroneous.

The government offers several legitimate reasons for the delay. First, it points to a change in prosecutors and the resulting need, for at least a limited period of time, to review the files and to prepare for judicial proceedings. While such a delay is permissible,13 it certainly does not fully explain or justify the three years that preceded this indictment.

More importantly, the government maintains that the delay was necessary to resolve

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questions about the admissibility of crucial evidence. In the case against Laura Whitehorn in the District of Maryland, the District Court initially suppressed much of the evidence, seized from a Baltimore apartment, that the government intended to introduce there as well as here. That suppression order was reversed by the Court of Appeals for the Fourth Circuit,14 and the basis of that reversal was ultimately argued before the Supreme Court in the parallel case of Murray v. United States, ___ U.S. ___, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). Because the prosecutors in the present case decided that admission of the evidence from the Baltimore apartment was essential to the instant prosecution,15 they attempted to wait until the Supreme Court rendered its decision in Murray.

However, when the statute of limitations was about to run in the instant case, and the Supreme Court had not yet issued its Murray ruling, the government finally asked the grand jury in this district to return the present indictment, and that indictment was, in fact, returned on April 20, 1988.

Then a further complication ensued. Because the armed robbery and conspiracy trial of Marilyn Buck was about to conclude just then in the Southern District of New York, the government requested that the indictment here be sealed to avoid any publicity that could affect the jury in that case, and the Court complied. On the day defendant Buck was convicted in New York, and the danger of prejudice had passed, the government requested that the indictment here be unsealed, and that was done.16

The Supreme Court has recognized that it is proper for a prosecutor to delay seeking an indictment until he is satisfied that he will be...

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