UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIEF FOR APPELLANT
The district court had jurisdiction over this case pursuant to 18 U.S.C. § 3231. A timely notice of appeal was filed. This Court has jurisdiction under 28 U.S.C. § 1291.
STATUTES AND RULES
Pertinent statutes and regulations appear in the addendum to this brief.
STATEMENT OF THE CASE
I. The Proceedings Below
On May 7, 1991, a grand jury returned a five-count indictment charging defendant with various offenses resulting from the firing of two projectiles at the United States Embassy in Jakarta, Indonesia, on May 14, 1986. (A. 1). Defendant was arrested ten years later in Nepal, and transported by FBI agents to the District of Columbia for trial.
Count two of the indictment was dismissed pretrial. (R. 57). Appellant's trial on the remaining four counts (1) commenced on October 22, 1997, before the Honorable James Robertson. On November 14, 1997, a jury found defendant guilty on each count. Appellant was sentenced to thirty years incarceration. (A. 4).
II. Statement of the Evidence
At approximately 11:00 a.m. on May 14, 1986, two primitive mortars landed on the grounds of the United States Embassy in Jakarta, Indonesia. Each mortar consisted of three small tin cans bound together and wrapped in tape. Each mortar contained approximately one pound of TNT. (Tr. 246). They had been launched from a homemade device located in a park across the street from the Embassy. Neither mortar exploded and no injuries resulted. (Tr. 1735-1755).
Approximately one-half hour later, two similarly constructed mortars were launched in the direction of the Japanese Embassy, situated a short distance from the U.S. Embassy. Investigation revealed that these mortars were launched from the window of room 827 of the President Hotel, located across the street. As with the American Embassy, neither of the two mortars exploded and there were no injuries.
At approximately noon the same day a car bomb exploded near the Canadian Embassy in Jakarta.
The government introduced four types of evidence in support of its contention that appellant was responsible for the Jakarta attacks. First, there was identification testimony from three witnesses, who purportedly saw defendant in Jakarta in May 1986. Second, evidence of defendant's fingerprints had been found in room 827. Third, the government introduced extensive evidence of defendant's alleged background and character. Finally, the government introduced physical evidence, including a videotaped recreation of a TNT explosion.
A. The Identifications
The testimony of the three identification witnesses was riddled with internal inconsistencies and significantly inconsistent with one another.
Valentia Zunaidi was a hotel clerk at the President Hotel. She identified defendant as the person to whom she rented room 827 on May 7, 1986, one week prior to these incidents. The individual used the name Shunsuke Kikuchi when checking into the hotel. (Tr. 1179-1191; 1217-1218).
The person who rented the car which exploded near the Canadian Embassy also used the name Shunsuke Kikuchi. Desiree Zecha was working as a rental agent at National Car Rental in Jakarta in May 1986. On May 7 she rented a Mitsubishi to Kikuchi, who stated that he was staying at the nearby President Hotel. Zecha was first asked to make an identification fifteen months after the incident. (Tr. 786-787, 799-801). She picked defendant's photograph. (Tr. 786-787, 799-801).
The third identification witness was Esther Summampouw, another hotel clerk. Summampouw testified that on April 24, 1986, a Japanese male, using the name Hirofumi Ishida, rented a room at the Menteng Hotel, located approximately one mile from the U.S. Embassy. Fifteen months later she also picked defendant's photograph from a group of several photographs. (Tr. 1434-1436).
B. The fingerprint Evidence
Indonesian officers testified that they lifted two fingerprints from a can and one from a lamp in room 827. The prints were subsequently identified as defendant's. (Tr. 1848, 1888-1889, 1997).
C. The Character and Associational Evidence
Over repeated objections, the government introduced extensive evidence concerning defendant's alleged membership in the Japanese Red Army (JRA), the character of this organization, the defendant's activities as a student in Japan in the early 1970s, his prior criminal convictions, and his release from a Japanese prison in 1977 on demands made by hijackers of a JAL airliner. This evidence was introduced through both expert and lay witnesses.
William Farrell, through whom much of this testimony was admitted, was qualified as an expert on "terrorism and the JRA". (Tr. 869-903).
Similar testimony was introduced through Shoichi Takahashi, a retired Japanese police officer, and Takeshi Ikesue, an employee of JAL. Takahashi testified that defendant had been convicted of numerous crimes in Japan in the early 1970s. (Tr. 1008-1009). Ikesue related details concerning the 1977 Dacca hijacking that resulted in defendant's release from a Japanese prison. (Tr. 1022-1032). The specifics of the Farrell, Takahashi, and Ikesue testimony are more fully described in the Argument section.
D. The Beisner testimony
FBI agents interviewed defendant during his transportation from Nepal to the United States. While defendant made no admission of involvement in the Jakarta attacks, the government called Agent Beisner in an attempt to have the jury draw adverse inferences from two specific statements defendant allegedly made during the flight. First, Beisner testified that defendant stated that he was aware the projectiles had not exploded. (Tr. 1075-76; 1093). Second, when shown a poster of alleged members of the JRA, petitioner admitted that he knew the individuals depicted thereon. (Tr. 1077). Defendant also expressed disagreement with the policies of the United States government. (Tr. 1106-1107). The defense's pretrial motion to suppress these statements was denied. (A. 10).
E. The Videotaped Explosion
Over objection of defendant, the government introduced a videotape of an explosion with one pound of TNT. The explosion was created by an FBI agent, and purported to demonstrate what might have occurred had the projectiles detonated.
SUMMARY OF ARGUMENT
"It is fundamental to American jurisprudence that 'a defendant must be tried for what he did, not for who he is.'" United States v. Foskey, 636 F.2d 517, 523 (D.C. Cir. 1980), (quoting United States v. Myers, 550 F.2d 1036, 1044 (5th Cir. 1977). This concept flows from the presumption of innocence. Foskey, 636 F.2d at 523. The first five issues derive from the government's consistent attempts to evade this basic evidentiary restriction.
The government built its case on the theme that defendant had been convicted of several crimes in the past and was a member of a small terrorist organization. The attack on the defendant's character took several forms. The assault that most offended bedrock principles of our criminal justice system focused on defendant's conviction for sixteen crimes arising out of events occurring fifteen years prior to the Jakarta attacks. The prior crimes evidence was introduced although defendant did not testify or otherwise put his character in issue.
Farrell, Takahashi, and Ikesue testified concerning a hijacking that resulted in defendant's release from a Japanese prison nine years before the Jakarta incidents. The government's broadside attack on defendant's character continued with associational evidence, designed to have the jury infer defendant's guilt by virtue of his alleged association with the JRA, an organization consistently portrayed as one dedicated to acts of violence and terrorism. The term "terrorism" was freely bandied about by Farrell, who testified concerning many of these matters.
Thus, to shore up what it consistently acknowledged was an otherwise weak case, (Tr. 10-7-97, 44-45; 10-21-97, 179; Tr. 2624), the government engaged in a tactic that it knew would play well in this day in time - namely, the portrayal of defendant as a terrorist to whom the finger of suspicion should unerringly point.
Three basic problems arose with this approach. First, much of this evidence was improper character evidence long prohibited by our legal system. Second, evidence was presented through the guise of an expert whose testimony violated several rules of evidence. Third, the government's proferred evidence justifying much of the character evidence was never produced. This approach effectively invited the jury to make judgments not on the basis of evidence directly related to the charged incidents, but rather on prejudicial inferences drawn from defendant's background and alleged prior associations.
The sixth argument concerns the denial of cross-examination of a key identification witness concerning her inability to make identifications and her potential bias. Zecha identified defendant as the person who used the name Shunsuke Kikuchi and rented the car that exploded in front of the Canadian Embassy. Her testimony was crucial because it corroborated that of Valentia Agustadi, who also identified defendant as the person who rented room 827, also using the Kikuchi pseudonym. Zecha's identification of defendant from a group of photographs fifteen months later strained credulity. Counsel was prevented from demonstrating how improbable the identification was when the court prohibited disclosure of the fact that at the suppression hearing Zecha had been unable to identify the very prosecutors with whom she had met for several hours only the preceding day.
The seventh argument concerns the admission of an extremely prejudicial videotape purporting to recreate what might have taken place had the projectiles exploded.
Defendant's last issue concerns the admission of statements allegedly made to FBI agents. Defendant's Miranda rights were violated when agents persisted in questioning him after he refused to sign a waiver on two occasions and indicated that he did not want to answer questions.
STANDARD OF REVIEW
Arguments 1-4, and 7 address the relevancy of evidence. The standard of review is abuse of discretion. United States v. Clarke, 24 F.3d 257, 267 (D.C. Cir. 1994).
Argument 5 addresses the admission of expert testimony. The standard of review is abuse of discretion. United States v. Boyd, 55 F.3d 667, 671 (D.C. Cir. 1995).
Argument 6 concerns restriction on cross-examination. Such limitations are reviewed de novo where they directly implicate the Sixth Amendment right to confrontation. Review is for abuse of discretion where the restrictions involve more peripheral concerns. United States v. Hernandez, 84 F.3d 931, 933 (7th Cir. 1996). Limitations on cross-examination as to bias are reviewed de novo. Id.
Argument 8 requires the court to determine whether defendant's statements were admitted in violation of the Fifth Amendment. This determination is de novo. United States v. Weisz, 718 F.2d 313 (D.C. Cir. 1983).
I. THE COURT ERRED IN ADMITTING EVIDENCE THAT DEFENDANT HAD BEEN CONVICTED IN 1971 OF NUMEROUS ROBBERIES AND RELATED CRIMES IN JAPAN.
A. Procedural Background
The government filed a notice pursuant to Fed. R. Evid. 404(b), announcing its intent to introduce evidence concerning several matters, including defendant's convictions for "7 robberies" (2) committed in 1971. (R. 58 at 3-4). The government alleged that the 1970-71 robberies were committed to finance activities of the Red Army Faction (RAF), a student group alleged to be a predecessor to the JRA, id. at 3, and argued that the convictions were relevant to show defendant's identity as a member of the JRA, his motive and intent in committing the offenses and "absence of mistake." Id. at 9, 11.
The government next filed a Motion for Admission of Expert JRA Testimony, seeking to introduce a litany of prejudicial evidence concerning the alleged nature and history of the JRA. Among the proposed subjects was defendant's Japanese convictions (R. 100 at 6). The rationale offered was that the convictions established defendant's membership in the JRA because the robberies were allegedly to fund its activities. Id.
The Court held a pretrial hearing to consider the proposed testimony. The defense objected that a defendant's prior convictions are normally inadmissible in a criminal trial unless defendant testifies or otherwise puts his character in issue. (R. 134). The defense also contended that the number and nature of certain convictions had nothing to do with the purported justification for admission. (Tr. 10-15-97, 22-23; Tr. 1150-1151).
In its motion the government represented that it would have separate witnesses testifying to defendant's admission to being a member of the JRA and his admission to involvement in the robberies. (R. 100 at 12). During the pretrial hearing, the court indicated that it was particularly concerned with evidence that the 1971 robberies were "to replenish JRA funds." (Tr. 10-7-97, 50-51). The government again assured the court that the defendant admitted being a member of the RAF and his involvement in the robberies when questioned in Japan. (Tr. 10-15-97, 57-61; 10-21-97, 370-374). (3)
Contrary to the government's representations, no evidence was introduced that defendant admitted being a member of the RAF. In a jury-out hearing, Japanese police office Takahashi testified to the contrary. (Tr. 983). More important, Takahashi offered no evidence on the critical issue of the alleged connection of the 1971 offenses to RAF fund-raising. (Tr. 960-1019). Further, other than a speculative remark by its expert (4) on "terrorism and the JRA," see Arguments 4 and 5, supra, no evidence was introduced to support the government's assertion that defendant had committed the robberies for JRA fundraising.
B. The Convictions Evidence
In opening statement the government announced that defendant had been convicted of a number of bank and post office robberies for the purpose of raising funds for a predecessor organization to the JRA. (Tr. 646).
The first evidence of the prior convictions came when Farrell testified that defendant had been convicted of "bank robbery and other related offenses" in 1970-71, and related his "understanding" as to the purpose of the robberies.
Takahashi testified that he investigated the "ultraleft" in Japan in the late 1960's and early 1970's. Through Takahashi the government introduced Exhibit 20, a fingerprint card of defendant and read therefrom that defendant had been arrested in March 1971 for automobile theft and that he had been convicted of "wounding through robbery, robbery, preparation for robbery, theft, attempted theft, [and] traffic law violation." (Tr. 1008-1009). Not satisfied, the government later introduced Exhibit 21. This document went even further, referencing sixteen prior convictions of the defendant. (Tr. 1150-51). (5)
The government again referred to defendant's convictions in closing argument, making reference to "bank robberies and other related offenses" to raise money for organizational purposes. (Tr. 2698).
1. The Evidence That Defendant had Been Previously Convicted of Numerous Crimes Was Improper Character Evidence Under FRE 404(a)
It cannot be gainsaid that evidence that defendant had been convicted of numerous prior crimes was highly prejudicial. There is perhaps no more well known rule of Anglo-American criminal jurisprudence than that prohibiting the prosecution from introducing evidence of a defendant's prior criminal record when defendant does not elect to testify and does not otherwise put his character in issue. Barnes v. United States, 365 F.2d 509, 510 (D.C. Cir. 1966). The "basis lies more in history, and experience than in logic." FRE 404, Advisory Committee Notes. The rationale was explained by the Supreme Court in Michelson v. United States, 335 U.S. 469, 475-476 (1948).
Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, [cite omitted], but it simply closes the whole matter of character, disposition and reputation on the prosecution's case-in-chief. The State may not show the defendant's prior trouble with the law, specific criminal acts, or ill- name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so over persuade them as to prejudge on a bad general record and deny him a fair opportunity to defend against a particular charge.
Stated otherwise, a person should "not be convicted based on the jury's assumption that person is bad because he committed some unrelated crime in the past." United States v. Torres-Flores, 827 F.2d 1031, 1036 (5th Cir. 1987). This Circuit recognizes that the introduction of evidence of a prior conviction has the potential for grave mischief because of its tendency to "divert the attention of the jury from the question of the defendant's responsibility for the crime charged to the improper issue of his bad character." United States v. Jones, 67 F.3d 320, 322 (D.C. Cir. 1995) (quoting United States v. James, 555 F.2d 992, 1000 (D.C. Cir. 1977).
The importance of this principle is evidenced by this Circuit's numerous reversals for improper admission of other crimes evidence. See United States v. Nicely, 922 F.2d 850 (D.C. Cir. 1991); United States v. Foskey, 636 F.2d 517 (D.C. Cir. 1980); United States v. Shelton, 628 F.2d 54 (D.C. 1980); United States v. James, 555 F.2d 992 (D.C. Cir. 1977); United States v. Bussey, 432 F.2d 1330 (D.C. Cir. 1970).
Fed. R. Evid. 404(b) creates an exception to the prohibition on other crimes evidence if such evidence is relevant to "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." However, before such evidence may be admitted, it must be "be relevant to an actual issue in the case, and its probative value must not be outweighed by its unfair prejudice to the defendant." United States v. Vaughan, 601 F.2d 42, 45 (2d Cir. 1979); see United States v. Mothershed, 859 F.2d 585, 588 (8th Cir. 1988) (admission of prior bad acts requires that the evidence be relevant to material issue, more probative than prejudicial, and similar in kind and close in time to charged crime). This Circuit "has repeatedly emphasized the narrow scope of the other crimes evidence exceptions under Rule 404(b)." United States v. Nicely, 922 F.2d 850, 857 (D.C. Cir. 1991).
2. The Conviction Evidence Was Not Admissible Under Rule 404(b)
Although the convictions were inadmissible character evidence under Rule 404(b), the issue remains whether they were admissible as other crimes evidence under Rule 404(b). To be so admissible, four showings must be made: (1) the prior convictions must be material to a fact in issue (2) when offered for purposes such as intent, knowledge, or identity, the prior crimes must be similar to the charged offense (3) there must be sufficient evidence that defendant committed the prior offenses and (4) the prior acts must not be too remote. United States v. Nelson, 137 F.3d 1094, 1106 (9th Cir. 1998). The first and fourth requirements were not met here.
a. The Conviction Evidence Was Not Material to a Fact In Issue
Taking a shotgun approach, the government argued that evidence of the prior convictions was relevant to show "identity, motive, intent, and absence of mistake." (R. 58 at 3-4, 11). See United States v. Sampson, 980 F.2d 883, 888 (3rd Cir. 1992) (criticizing government's rote recitation of "knowledge, intent, absence of mistake, etc." without explaining how evidence relates to recited purposes.). None of these theories justified admission of the defendant's prior convictions.
As to the admission of other crimes evidence to show intent, the rule in this Circuit is that "similarity between the two events must be shown to establish the threshold requirement of relevance." United States v. Foskey, 636 F.2d 517, 523-24 (D.C. Cir. 1980); United States v. Nicely, 922 F.2d at 850. This is also the rule in other circuits. See United States v. Hernandez-Miranda, 601 F.2d 1104, 1108 (9th Cir. 1979); United States v. Corey, 566 F.2d 429, 431-32 (2d Cir. 1977.
Here, there was no evidence establishing the requisite similarity between the 1970-71 convictions and the charged crimes. The only circumstance relative to the Japanese convictions was Farrell's bald assertion that the offenses were committed for the purpose of fund-raising for a left-wing Japanese organization, which had philosophical antecedents with a later group that became the JRA. No further details were elicited relevant to the Jakarta attacks, such as the procurement and use of false identification, international travel, the knowledge or use of explosives, etc.
The government fares little better with its identity argument. Again, the rule is clear that:
In order to use bad acts evidence to show criminal identity through modus operandi, the Government must establish not only that the extrinsic act "bears some peculiar or striking similarity" to the charged crime, United States v. Garbett, 867 F.2d 1132, 1135 (8th Cir. 1989), but also that it is the defendant's trademark, "so unusual and distinctive as to be like a signature," United States v. Garcia-Rosa, 876 F.2d 209, 224 (1st Cir. 1989).
United States v. Crowder, 87 F.3d 1405 (D.C. Cir. 1996). As with the intent justification, no evidence was introduced that the Japanese offenses and the Jakarta attacks involved a distinctive MO.
(3) Absence of Mistake
The government never explained the logic of its "absence of mistake" proffer. The defendant never claimed that the projectiles were fired at the embassies by mistake. The government cannot introduce 404(b) evidence to rebut a defense not raised by the defendant. United States v. Colon, 880 F.2d 650 (2d Cir. 1990).
While other crimes evidence may be relevant to a defendant's motives, the government's theory in this regard also does not withstand logical scrutiny. Courts have allowed uncharged conduct on a motive theory in two circumstances: (1) where the uncharged crime supplies motive for the charged crime and (2) where the uncharged crime evidences the same motive that impelled the charged crime. Imwinkelried, Uncharged Misconduct Evidence, §§ 3:10-3:14 (1995).
As to the former, there was no claim that the 1971 robberies motivated the Jakarta attacks fifteen years later. As to the latter, similarly there was no claim that the 1986 attack was for the purpose of raising money for the JRA, the alleged motivation of the 1971 robberies. See Lempert & Saltzburg, A Modern Approach to Evidence, § 226 (2d Ed. 1982)(noting that the argument that evidence of a separate crime should be admitted on basis that it was propelled by same motive as charged crime, is often nothing more than prohibited "propensity evidence under a different name." (6)
b. The Conviction Evidence Was Remote
The convictions were also too remote for admission under Rule 404(b). See Jankins v. TDC Management Corp., 21 F.3d 436, 440-442 (D.C. Cir. 1994)(evidence of fraudulent conduct occurring 1-2 years prior to events in question held inadmissible because of remoteness). The convictions occurred approximately fifteen years prior to the Jakarta attacks. While this might not be a per se bar, considered in light of the tenuous connections of the RAF to the JRA, the lack of solid evidence as to the asserted purpose behind the conduct resulting in the convictions, and the lack of any evidence as to defendant's activities and whereabouts after 1977, the evidence was too remote to justify admission.
c. The Government Failed to Introduce Competent Evidence That the Convictions Were the Result of Efforts To Raise Money for the JRA
Finally, the government never fulfilled its promise to offer independent evidence establishing that the Japanese convictions arose from conduct designed to raise funds for the RAF, which the government claimed was a predecessor to the JRA. The reason proferred by the government for the evidence was that it would show defendant's connection to the JRA. Setting aside the remoteness and relevance issues, the government did not even establish what it claimed to be defendant's purpose in committing the offenses in 1970-71. The court had clearly relied upon the government's representation in this regard in ruling on admissibility of the conviction evidence.
3. Even If Evidence of the Convictions Was Relevant For Some Purpose, It Should Have Been Excluded Pursuant to Rule 403
Rule 403's requirement that the probative value of evidence not be substantially outweighed by its prejudicial impact is of particular concern in the admission of other crimes evidence under Rule 404(b). See United States v. Rhodes, 886 F.2d 375 (D.C. Cir. 1990); United States v. Nicely, 922 F.2d 850 (1991). Even if defendant had committed the Japanese offenses in order to raise funds for an organization that somehow later metamorphasized into the JRA, this minimal relevance was far outweighed by overriding concerns such as the debilitating effect of prior convictions on the presumption of innocence, and fears that the jury will convict because the defendant is assumed to be a "bad" person -- concerns that are magnified when the person is portrayed as bad, in part, because he is a "terrorist."
Further, the prejudicial value of the conviction evidence was unnecessarily magnified by introducing sixteen convictions. Neither the number nor the nature of many of the convictions was necessary to show the alleged "connection to the JRA." In fact, because the alleged connection was not established by the documentary evidence, Exhibits 20 and 21, but only through Farrell's unsupported assertions, there was no need for reference to the actual convictions. Farrell simply could have testified that his "understanding" was that defendant had been a member of the RAF and had engaged in extensive fund-raising and other activities on its behalf.
Though the introduction of the prior convictions was the most striking obliteration of the rule prohibiting character evidence, it was only one of several means by which the government attempted to convict defendant by means of a prejudicial portrayal of who he allegedly was. The government continued its approach by introducing evidence as to the circumstances of defendant's release from a Japanese prison some nine years before the Jakarta attacks.
II. THE COURT ERRED IN ADMITTING
EVIDENCE THAT DEFENDANT HAD BEEN RELEASED FROM A JAPANESE PRISON IN 1977 AS A RESULT OF
DEMANDS MADE BY HIJACKERS ASSOCIATED WITH THE JAPANESE RED ARMY AND ADMITTING EVIDENCE OF
IRRELEVANT AND PREJUDICIAL DETAILS OF THE INCIDENT.
A. Procedural Background
In its 404(b) notice, the government sought to introduce evidence concerning defendant's release from a Japanese prison in 1977 as a result of the hijacking of a JAL airliner by individuals claiming JRA membership, arguing that such evidence was relevant to show defendant's "connection to the JRA." (R. 58 at 3-4, 9). In its Motion for Admission of Expert JRA Testimony, the government also proposed that Farrell testify concerning the circumstances of the 1977 hijacking. (R. 100 at 11). Defendant objected to any testimony concerning this incident. (R. 134). Alternatively, if general reference was allowed to this incident, defendant contended that prejudicial details should be excluded. (Tr. 10-20-97, 137-142; Tr. 604). Objections were renewed and overruled at trial. (Tr. 951).
B. The Evidence
Farrell described the hijacking of a JAL airliner in 1977 by individuals subsequently identified as members of the JRA. (Tr. 898-899). The hijackers demanded $6 million dollars in ransom and the release of several individuals from Japanese jails. (Tr. 899). Ultimately, 6 prisoners were released, only two of which "were stated" to be members of the JRA. (Tr. 900, 918).
Japanese police officer Takahashi testified about his efforts to raise the $6 million ransom. He also described the release of the prisoners from Japan, each of whom walked to a waiting plane, carrying large bags of money. (Tr. 1011-13).
Takeshi Ikesui, a steward on the hijacked JAL airliner, testified that while en route to Bangkok several passengers, armed with guns, took control and forced the plane to land at Dacca, Bangladesh. (Tr. 1022-1023). The hijackers stated that they were the JRA and had hijacked the plane for the purpose of destroying the Japanese government. (Tr. 1023-1024). They demanded $6 million ransom and the release of nine prisoners in Japanese jails. (Tr. 1025). They remained parked at the airport in Dacca for several days, short of both food and water. (Tr. 1030-1032). Later, a plane arrived from Japan and one-by-one over a period of hours released prisoners came aboard carrying bags of money. (Tr. 1027-1029). Ikesue identified defendant as the third released prisoner who boarded the plane. (Tr. 1036). C. Discussion
The hijacking evidence raises two issues. The first concerns the admissibility of any evidence relative to the incident. Second, even if it was proper to allow some reference to the incident, evidence of particular prejudicial details added nothing to the ostensible purpose for admitting the evidence and should have been excluded. These issues are resolved by a straight-forward application of Rules 401 and 403.
1. The Court Should Not Have Allowed Any Evidence Concerning the Dacca Hijacking Without a Showing of Defendant's Continued Affiliation with the JRA and the JRA's Responsibility for the Jakarta
Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. An item acquires relevance only in connection with its tendency to prove a fact in issue. Huddleston v. United States, 485 U.S. 681, 689 (1988). "More [is] required" for relevant evidence to be admitted -- the relevance to establish that point for which it is offered must not be substantially outweighed by its probative value. United States v. Doe, 903 F.2d 16, 21 (D.C. Cir. 1990)(error to admit evidence under Rule 403 even though evidence relevant under Rule 401).
The relevance of the hijacking to show defendant's "connection to the JRA" depended upon two inferences: that defendant continued to be associated with the JRA in 1986 and that the JRA was responsible for the Jakarta attacks. Neither inference was established
First, the Dacca hijacking occurred nine years prior to Jakarta. There was no evidence concerning defendant's activities, whereabouts, or associations in those years. Without some evidence of defendant's continued affiliation with the JRA in 1986, the fact that his release from prison in 1977 was a result of the demands of individuals claiming JRA connections was irrelevant. The probative value of Dacca was thus extinguished by its remoteness. See Jankins v. TDC Management Corp., supra.
Second, assuming a foundation had been laid as to defendant's continued relationship with the JRA in 1986, that relationship was irrelevant without some showing of the JRA's connection to Jakarta. (7) The government's approach was to let the tail wag the dog by reasoning that defendant was at one time associated with the JRA, so the JRA must have been responsible for Jakarta, because defendant was allegedly responsible for the attacks.
2. The Court Should Not Have Allowed
Prejudicial Evidence Concerning the Details of the Dacca Hijacking
Even if some evidence of the circumstance of defendant's release from prison was admissible, proof of the prejudicial details of the hijacking served no purpose other than to infer defendant's guilt from his association with individuals who would commit such acts. That the hijackers had weapons and placed them in the face of the chief steward or that the passengers sat on the runway for several days without food or water, added little or nothing to the alleged connection inference.
The most strenuously objected-to part of the Dacca incident related to the $6 million dollar ransom. That this ransom was demanded and that each of the released prisoners carried a large bag onto the plane again added nothing to the "connection" inference. This evidence only served to place defendant's character in an unfavorable light -- as one who not only was released from prison as a result of an armed hijacking, but also profited handsomely from this conduct. Whatever probative value there may have been from the Dacca evidence was established by the testimony of Takahashi and Ikesue identifying defendant as one of those released from the Japanese prison. There was neither a need nor a logical basis for the ransom testimony, and none was offered when objections were raised.
The Dacca evidence went beyond the limits of Rules 401 and 403. It was also inadmissible character evidence under Rule 404(a). The most prejudicial effect of the Dacca evidence was its tendency to establish guilt by association, which as discussed next, was part of a systematic approach taken by the government.
III. THE COURT ERRED IN ADMITTING EVIDENCE THAT DEFENDANT WAS ALLEGEDLY ASSOCIATED WITH THE JAPANESE RED ARMY AND IN ADMITTING EVIDENCE OF VIOLENT, UNRELATED ACTS ALLEGEDLY COMMITTED BY THAT ORGANIZATION.
A. Procedural Background
The defendant's alleged affiliation with the JRA was a major focus of the government's presentation. Though the government emphasized the so-called JRA connection whenever possible, the thrust of its presentation was through Farrell, whose testimony raised issues of relevance and improper character evidence. Separate issues concerning Farrell's testimony under Rules 702 and 703 are discussed in Argument V, infra.
In a pretrial motion the government proposed admission of extensive evidence from Farrell concerning both the defendant's alleged personal history and the nature and history of the JRA. (R. 100). A hearing was held to determine the extent to which Farrell would be allowed to testify. (Tr. 10-7-97, 1-110).
Thereafter, the Court issued an order concerning the proposed Farrell testimony. (A. 8). (8) Defense counsel filed a Motion for Reconsideration. (R. 133). Objections were renewed in trial to much of Farrell's testimony. (Tr. 869-903).
B. The Farrell Testimony
Farrell testified that he has a doctorate in international relations. During his military career he worked in Air Force counterintelligence, where in the early 1970's he liasoned with Japanese police and intelligence organizations. (Tr. 869-872). Farrell was offered "as an expert in the activities of the Japanese Red Army and in terrorism in general." (Tr. 880-881).
1. Nature and activities of the JRA
Farrell testified that the term JRA covered 3-4 different factions which arose from the Japanese student movement in the late 1960's. (Tr. 882). One of the groups advocating a more confrontational approach was the Red Army Faction (RAF). To finance its activities the group began to commit robberies, steal weapons, and plan kidnappings. (Tr. 883, 885). According to Farrell, defendant's convictions in 1971 were for the purpose of raising funds for the RAF. After an internal dispute in 1971 -- at a time when defendant was incarcerated -- one RAF member, Fusako Shigenobu, left Japan and went to the Middle East where she formed a successor organization which eventually called itself the JRA. (Tr. 907-917). The JRA began to look to a "larger revolution against imperialism," and adopted an international focus. (Tr. 883, 916-17).
Farrell testified that the JRA has between fifteen and forty members, mostly college educated. (Tr. 891). The JRA has an anti-imperialistic objective, and over the years has been critical of both Japanese and United States' policies. (Tr. 893-894). It often publishes its viewpoints through newsletters, press releases and interviews of its leaders. (Tr. 894). At times, these statements called for attacks against the United States. (Tr. 896). Farrell characterized their philosophy as "doing rather than talking." The group has "engaged in a series of activities over the years that involved hijacking, embassy, or consular takeovers," (9) as well as actions to free imprisoned JRA members. (Tr. 897). Farrell described the Dacca incident, noting it was "consistent with the activities of the JRA." (Tr. 901). As summarized in Arguments IV and V, supra, Farrell consistently connected the JRA to "terrorism" and opined as to its relation to the Jakarta attacks.
2. Defendant's Connection to the JRA
Farrell attempted to link defendant to the JRA in two ways. First, he testified that defendant was convicted of "bank robbery and other related offenses" in 1970-71. Without stating the basis of his assertion, Farrell stated that these were related to attempts to raise funds for a predecessor JRA organization. (10) The second way in which Farrell attempted to link defendant to the JRA was through the Dacca hijacking. Neither Farrell, nor anyone else, testified as to defendant's whereabouts or activities from 1977 until 1986.
3. Jakarta and the JRA:
Farrell testified that in May 1986 an economic summit of the large industrial nations was held in Tokyo. The participants issued a statement condemning terrorism. Farrell then opined that the attacks in Jakarta were consistent with the philosophy, nature, and organization of the JRA. His opinion was based on "statements" that had been issued "out of the Middle East" by the JRA condemning the policies of the U.S. and Japan shortly before the attack. (Tr. 903). Farrell concluded by telling the jury that "from an intelligence officer's point of view . . . the JRA would be one [organization] that I would be looking into to see if they were related to the event." (Tr. 901-903).
The attempt to tie a defendant's guilt directly to his association with an unsavory group raises the same concerns as other attempts to introduce evidence of uncharged misconduct. Such associational evidence also "deflects the jury's attention from the immediate charges and causes it to prejudge a person with a disreputable past, thereby denying that person a fair opportunity to defend against the offense that is charged." United States v. Roark, 924 F.2d 1426, 1434 (8th Cir. 1991).
It is a "long-established rule that a defendant's guilt may not be proven by showing that he associates with unsavory characters." United States v. Romo, 669 F.2d 285, 288 (5th Cir. 1982) (quoting United States v. Singleterry, 646 F.2d 1014, 1018 (5th Cir. 1981). "That one is married to, associated with, or in the company of a criminal does not support the inference that the person is a criminal or shares in the criminal's guilty knowledge." United States v. Pritchett, 699 F.2d 317, 319 (6th Cir. 1983) (cross-examination of defendant in drug case about acquaintance with person convicted of drug offense improper because it could be "perceived as an attempt to establish guilt by association"); United States v. Roenigk, 810 F.2d 809, 816 (8th Cir. 1987)(reversible error in perjury trial to admit evidence of crimes of associate of defendant, as proof invited jury to reason that defendant "because of his association with a convicted drug dealer, was more likely to be guilty.").
The prohibition against guilt by association does not necessarily preclude evidence that a defendant is a member of a gang or other group where such membership is relevant to a fact in issue. United States v. Santiago, 46 F.3d 885 (9th Cir. 1995); United States v. Easter, 66 F.3d 1018 (9th Cir. 1995). However, such relevance is usually shown by evidence independent of the mere allegation of gang membership, such as evidence connecting the gang to the crime, Santiago, supra (defendant seen consulting with gang members shortly before murder and witness testified that crime committed as a prerequisite to gang membership), or that the gang affiliation is relevant to a witness' credibility. United States v. Abel, 469 U.S. 45 (1984)(witness and defendant both members of Aryan Brotherhood and members sworn to lie for each other). Even when such reference is relevant, courts have limited testimony concerning the specific activities and history of the gang or its members. Easter, 66 F.3d at 1021.
1. The Farrell Testimony
The government used Farrell's testimony to support an inference that defendant was guilty because he allegedly associated with or had the same beliefs as members of the JRA. Had Farrell merely testified that the JRA was a group that violently disagreed with the policies of the United States and Japan and that defendant had at one time been associated with some of its members, the government would have effectively established its point. However, the government went much further. Farrell consistently referred to the group using pejorative terms such as "terrorism," and testified that the JRA was an action-oriented group that had engaged in numerous violent activities such as hijackings and embassy and consular attacks or takeovers. Thus, unlike Easter, the court did not sufficiently limit the testimony concerning the JRA's activities and history; instead, Farrell testified the JRA committed crimes similar to those charged here. Such testimony could only have the prohibited effect of creating an inference that defendant was guilty because of the people with whom he associated. The relevance of the references to the violent internationally condemned conduct of the JRA was even more attenuated because defendant was in jail at a time when the JRA had committed most of its violent acts. (11) The government may not "parade past the jury a litany of potentially prejudicial similar acts that have been establish or connected to the defendant only by unsubstantiated innuendo." Huddleston, 485 U.S. at 689.
2. Exhibit 38B
Exhibit 38 was a poster, captioned "Members Concerned with Japanese Red Army." It depicted 16 individuals, with all but four in the stereotypical dual-poses typically associated with mug shots. The government offered a redacted version, Exhibit 38B, which obliterated the reference to Dacca but left references to incidents that occurred in Kuala Lumpur and Israel. References to the defendant were physically cut out of Exhibit 38B with scissors. Defendant objected that this method was not acceptable, pointing out that the government could white-out all the references. The court nonetheless received the exhibit. (Tr. 1200-1201).
The attempt to mask out a portion of Exhibit 38B was ineffective. See United States v. Torres, 827 F.2d 1031 (5th Cir. 1987)(attempts to cover incriminating information on photographs termed "careless" and "inartful" and constituted reversible error; efforts even more ineffectual in light of fact that incriminating information on other photos not covered); United States v. Fosher, 568 F.2d 207, 215 (1st Cir. 1978); Barnes v. United States, 365 F.2d 509, 510 (D.C. Cir. 1966).
The exhibit was consistent with the government's attempt to establish defendant's guilt by association. The objected-to language on this exhibit informed the jury that several other members of the JRA had been released as a result of other international "incidents" beyond Dacca.
In Roark, supra, the 8th Circuit reversed a drug conviction where the government attempted to connect defendant to Hell's Angels and called an expert to testify as to its reputation for drug-related activities. In so doing the court noted that the government had engaged in a "relentless attempt to convict" defendant through his association with an undesirable group. 924 F.2d at 1431. The government engaged in the same conduct here.
Another aspect of the government's "relentless" approach is discussed in the next section -- the effort to inject the term "terrorism" in the trial whenever possible.
IV. THE COURT ERRED IN ALLOWING GOVERNMENT COUNSEL AND WITNESSES TO REPEATEDLY USE THE WORD "TERRORISM."
A. Procedural Background
The defendant objected pretrial to the government's proposed expert peppering his testimony with use of the word "terrorism," noting that defendant was not charged with violating terrorism statutes. (Tr. 9-18-97, 7; R. 134). The Court ruled it would not exclude such references but "instruct[ed] government counsel that repeated or gratuitous uses of the word terrorism ....where it is not really necessary in the context of the question or the answer will be strongly disfavored and could even result in a serious problem for the prosecution." (Tr. 10-21-97, 341-344). In response, the government indicated that it intended to have Farrell make several references to his expertise in "terrorism." The court also denied defense counsel's request that the court reconsider its ruling that Farrell could describe the JRA as a "small secretive terrorist organization." Id.
The government thus told the jury in opening statement that defendant was a member of the JRA, "a tiny group of terrorists." (Tr. 652). Noting the repeated and gratuitous use of the word, counsel renewed the objection during Farrell's testimony. (Tr. 881). (12)
As counsel feared, the government took advantage of the court's ruling to repeatedly inject this term into Farrell's testimony. Despite the court's admonition, many of the references were gratuitous and unnecessary. Thus, Farrell testified that he had written a graduate paper on terrorism, had lectured and written on the subject, had worked on developing policies to counter terrorism, (Tr. 874-876), and had "focused on the problem of terrorist activity as it affects U.S. interests." (Tr. 879). Farrell also specifically linked the JRA and terrorism. (Tr. 876, 878). In fact, the linkage had been irrevocably sealed when Farrell was qualified as an expert on terrorism and the JRA over defendant's objection to "putting the terms together." (Tr. 880-881).
The attempts to inflame the jury's passion by gratuitous references to "terrorism" did not end with Farrell. FBI Agent Hartman testified that he exhibited photographs to various individuals in Indonesia to determine if they could make an identification. In response to a prosecution question Hartman related that he had obtained the photographs from a booklet entitled "Japanese Terrorists Abroad," prepared by the Japanese National Police. (Tr. 1300-1302). Although the court denied defendant's mistrial motion, it did later exclude the exhibit. (Tr. 1332-1333, 2491-2496).
The unnecessary use of pejorative connotations is error. United States v. DeLoach, 504 F.2d 185, 193 (D.C. Cir. 1974)(use of the term "execution" to describe a murder held improper and prejudicial); United States v. Jones, 482 F.2d 747, 753 (D.C. Cir. 1973); United States v. Lowenberg, 853 F.2d 295, 301 (5th Cir. 11985)(in calling defendant a "pimp" and "exhibitionist" the prosecutor "failed to fulfil the duty of fairness and honor that he owed, not only to the defendants, but to the court and to the government he represents."); United States v. Rodriguez-Estrada, 877 F.2d 153, 158 (1st Cir. 1989)("the prosecutor's obligation to desist from the use of pejorative language and inflammatory rhetoric is every bit as solemn as his obligation to attempt to bring the guilty to account."). A court will examine language used by the government to see if it is "of the sort to arouse a jury" in such a manner that a "prejudicial spillover effect is palpable." United States v. Pellulo, 14 F.3d 881, 898 (3rd Cir. 1994).
These repeated references also present issues under Rules 401 and 403. When defendant objected pretrial, the government did not give any indication why such references were relevant, only remarking that the JRA was a terrorist group and that Farrell should be allowed to so testify. (Tr. 10-21-98, 341-344). Whatever relevance these references may have had -- and none is clear -- it was substantially outweighed by its tendency to cause unfair prejudice, defined as "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Advisory Committee Notes, Fed. R. Evid.
1. The Farrell References to Terrorism
The repeated references to terrorism added little to Farrell's testimony. Farrell could have described his knowledge of the structure, organization, and philosophy of the JRA without references to graduate study, teaching, and writing in reference to the subject of "terrorism".
Farrell's testimony had two additional pernicious and highly prejudicial effects. First, he equated the JRA and terrorism in several of his responses, a linkage that was emphasized when the government offered him as an expert in "terrorism and the JRA." Second, the government played on the emotions and passions of the jury when the prosecutor asked Farrell about "his focus on how terrorism affects U.S. interests" - a concern that had nothing whatsoever to do with the trial. It goes without saying that the topic of terrorism is an emotional and highly charged one with the public in this day in time. See Washington Post, July 30, 1996, "Poll: Terror Probes Wanted" (nearly 9/10 Americans wants more security measures to guard against terrorism). This Court has recognized that the "context of current events" are to be considered in evaluating the prejudice from unnecessary and inflammatory appeals to passions and emotions. Brown v. United States, 370 F.2d 242, 246 (D.C. Cir. 1966). The injection of "terrorism" had no place in this trial. Defendant was charged with specific statutory offenses that were not defined in terms of terrorism.
2. Exhibit 22
While Farrell's testimony was designed to continually reinforce these prejudicial and irrelevant images in the juror's minds, nothing could have more clearly unmasked the government's true purpose in putting the "terrorism" references before the jury than the circumstances surrounding Exhibit 22.
There was no
conceivable relevance to the source of the photographs Hartman displayed to
Takahashi. The only purpose was to place the highly prejudicial fact that defendant's
photograph was in a booklet entitled "Japanese Terrorists Abroad" before the
jury. (13) The analogous situation would be a detective
who showed an identification witness a group of photographs testifying that the source of
the photographs was from a mug book or from a file of convicted murderers etc. Such
testimony is patently inadmissible. Indeed, the "grave risk in the introduction of
photographs which carry prejudicial implications" has been the basis of numerous
reversals where the government has introduced photographs that were used in an
identification process and which contained prejudicial matter that had either not been, or
was "inartfully", redacted. United
States v. Torres-Flores, 827 F.2d at 1033-1039,(and cases cited therein); Barnes v. United States, 365 F.2d 509, 510 (D.C.
Cir. 1966). Here, the very purpose of Exhibit 22 was to communicate such prejudicial and
inflammatory information. Takahashi had not made his identification from Exhibit 22. The
only reason the government elicited this testimony was to emphasize its
V. THE COURT ERRED IN ALLOWING WILLIAM
FARRELL TO TESTIFY AS AN EXPERT ON "TERRORISM AND THE JAPANESE RED ARMY," AND IN
OFFERING TESTIMONY IN VIOLATION OF FED. R. EVID. 702 AND 703.
A. Procedural Background
The procedural background relative to the Farrell testimony has been described in Argument III, supra.
The problems with Farrell's testimony under Rules 401, 403, and 404 have been addressed. This argument analyzes Farrell's testimony in terms of Rules 702 and 703, which govern the admission of and limitations upon expert testimony.
Rule 702 provides that expert testimony in the form of an opinion or otherwise may be given where it "will assist the trier of fact to understand the evidence or to determine a fact in issue . . ". Rule 703 allows the expert to base his testimony on facts or data made known to him at or before the trial. However, the facts or data underlying the testimony must be "of a type reasonably relied upon by experts in the particular field."
Several aspects of Farrell's testimony violated these rules.
First, Farrell's expertise on "terrorism" did not assist the jury in deciding any issue and thus violated Rule 702. Because the jury was not called upon to decide any issue relating to terrorism a fortiori, Farrell's expertise on the subject could provide them no assistance. Expert evidence not relevant to any issue is not helpful. United States v. Ruoco, 765 F.2d 983 (11th Cir. 1985). Farrell's testimony on an irrelevant and emotional subject such as "terrorism" was particularly problematic because "[e]xpert testimony risks biasing the jury because of its aura of special relevance and trust." United States v. Anderson, 851 F.2d 384 (D.C. Cir. 1988), (quoting United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973)).
Second, there was no showing that the data underlying Farrell's testimony was of a type reasonably relied upon by experts. Prior to trial, counsel objected to the basis of Farrell's testimony within the meaning of Rule 703. (Tr. 9-18-97, 23-24; Tr. 10-15-97, 34-38). Farrell testified at the pretrial hearing that his knowledge concerning defendant's involvement with the RAF in 1970-71 was two-fold: information he received as an Air Force intelligence officer from Japanese police agencies and information he obtained from newspapers and magazines. (Tr. 10-15-97, 27, 51-53). Farrell later admitted that information from such sources often turns out to be incorrect. (Tr. 906-907). The court noted the problems of "shoehorning" a lot of hearsay into evidence through an expert in "published reports." (Tr. 10-15-97, 87-89).
Rule 703 "is designed to prevent experts from relating hearsay evidence derived from sources that have obvious characteristics of unreliability." Ricciardio v. Children's Hospital, 811 F.2d 18, 24-25 (1st Cir. 1987). Here, Farrell's testimony, such as his "understanding" as to the purpose of the 1970-71 robberies, was admitted as substantive evidence against defendant. When Rule 703 is used to bring unreliable evidence before a jury, serious questions are raised as to defendant's right of confrontation. United States v. Wright, 793 F.2d 1091, 1101 (D.C. Cir. 1986). The government made no showing that newspapers and magazines were the type of information reasonably relied upon by an expert in Farrell's field.
Similarly, Rule 703 was not designed to allow an expert to rely on anonymous hearsay. However, Farrell admitted that his opinion that the Jakarta attacks were consistent with the philosophy and nature of the JRA was based precisely on such information. When directly asked the basis for this conclusion, Farrell pointed to anonymous hearsay statements attributed to the JRA and "issued out of the Middle East" a few weeks before Jakarta, calling for action against the United States. (Tr. 902-903).
Third, Farrell's testimony that the attacks were consistent with the philosophy and nature of the JRA did not assist the jury. (Tr. 902-903). This amounted to nothing more than profile evidence. The credibility of the government's evidence may not be bolstered by arguing that version of events is "consistent with an expert's description of patterns of criminal conduct. . . ." United States v. Cruz, 981 F.2d 659 (2nd Cir. 1992). Expert evidence that a defendant fits a profile has been held inadmissible. See United States v. Doe, 903 F.2d 16 (D.C. Cir. 1990)(expert testimony of modus operandi of Jamaican drug dealers inadmissible); United States v. Lui, 941 F.2d 844, 847 (9th Cir. 1991)(drug courier profile); United States v. Quigley, 890 F.2d 1019, 1023-1024 (8th Cir. 1989); United States v. Jones, 913 F.2d 174, 177 (4th Cir. 1990). Such evidence is often "nothing more than the opinion of those officers conducting an investigation." United States v. Beltran-Rios, 878 F.2d 1208, 1210 (9th Cir. 1989).
Fourth, Farrell's testimony that the JRA would be one of the groups he would be investigating for the Jakarta attacks similarly invaded the province of the jury and thus was not helpful. Rule 702 did not allow substitution of Farrell's opinion for the task of the jury. See United States v. Boyd, 55 F.3d 667, 672 (D.C. Cir. 1995).
Further, even if expert evidence may be helpful, Rule 403 may require its exclusion. United States v. Doe, 903 F.2d 16 (D.C. Cir. 1990). Expert testimony on the ultimate issue of who was responsible for the attacks was "likely to have a powerful effect on the result." Boyd, 55 F.3d at 672.
VI. THE COURT ERRED IN RESTRICTING THE CROSS-EXAMINATION OF DESIREE ZECHA AND IN DENYING DEFENDANT THE RIGHT TO CALL FBI AGENT KERSTENS TO TESTIFY CONCERNING ZECHA'S INABILITY TO MAKE ACCURATE IDENTIFICATIONS
A. Procedural Background
Desiree Zecha was one of the three witnesses who, at one time, identified defendant as having been in Jakarta in 1986.
Zecha testified that on May 7, 1986, she rented the car that exploded one week later to an individual using the name Shunsuke Kikuchi, who stated that he was staying at the nearby President Hotel. Fifteen months later Zecha identified defendant when shown several photographs. (Tr. 790-799).
On cross-examination during a pretrial hearing to suppress her identification testimony, Zecha denied that she had been shown any statements prior to testifying. (Tr. 10-20-97, 133-134). As the government later admitted, this testimony was false. The government attempted to rehabilitate her on redirect. However, Zecha continued her denials, stating that she had never previously seen the prosecutor questioning her. When the other prosecutor was asked to stand up, Zecha unequivocally persisted in her denials stating that she had never seen him before either. (Tr. 133-135). This obviously incorrect testimony forced the government to reveal that she had indeed previously met with them -- the very day before she had testified. (Tr. 10-21-97, 181-182). (14) The government represented that Zecha had a "medical situation" the day before, that she was "taking some pills," and that she was "somewhat disoriented." Defense counsel noted the whole matter raised serious questions concerning Zecha's ability to make accurate identifications (Tr. 190-192), and, questioning the "medication" explanation, requested that Zecha, who was just outside the courtroom, be recalled to testify as to the alleged medication and dosage. The court declined this request, but ordered the government to disclose this information to the defense if it was claiming the "medication caused her to forget where she was on Saturday or Sunday." (Tr. 10-21-98, 195).
When counsel attempted to cross-examine Zecha concerning this matter at trial, the court interposed an objection sua sponte, stating the matter as to whether Zecha had testified "candidly" at the suppression hearing was collateral. (Tr. 855-857). Counsel had previously alerted the court that the government's response to the order to provide the information corroborating its "medication" explanation had cast serious doubt on the credibility of that representation. (15) (Tr. 613). However, in response to the court's collateral concerns, the defense stated that it did not need to go into the purported explanation, but only desired to examine Zecha on the testimony itself. Counsel argued that the ruling denied the defendant the right to confront Zecha on two crucial points raised by her testimony: her ability to make accurate identifications and her bias. (Tr. 864-865, 867-68).
In its case the defense attempted to further pursue Zecha's inability to make accurate identifications by questioning FBI Agent Kerstens, who was present at the weekend meeting of Zecha and the prosecutors. Counsel wanted to establish that the meeting took place and how long the meeting lasted. (16) Counsel then intended to introduced Zecha's suppression hearing testimony on this point as former testimony pursuant to Rule 804(b)(1). The court again denied this request. (Tr. 2555-2559).
Shortly after the jury was sent out to deliberate, the government informed the court that it wanted to make a further record concerning the Zecha matter. Defense counsel objected to any proffer other than what was already in the record. The government then corrected its representation that Zecha had been on medication, offering other reasons, however, for her false testimony. (Tr. 2798-2801).
Concerned about the ruling, the government filed an unusual post-trial Motion To Amplify the Record, asking the court to set forth additional reasons not previously raised or relied upon. (R. 172). Recognizing that it may later appear to be a "post-hoc rationalization," the court nonetheless accepted the government's invitation and amplified on the reasons for its ruling. (Tr. 2-20-98, 2-4).
1. The Restriction on Cross-Examination
The court's ruling deprived defendant of his Sixth Amendment right of confrontation. The primary interest secured by this constitutional provision is the right of the defendant to cross-examine adverse witnesses. Douglas v. Alabama 380 U.S. 415 (1965); Smith v. Illinois, 390 U.S. 129, 131 (1968). More than merely "a desirable rule of trial procedure", the right of cross-examination is designed to assure truthful fact-finding. Chambers v. Mississippi, 410 U.S. 284, 295 (1973). "Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested." Davis v. Alaska, 415 U.S. 308, 316 (1974). Accordingly, the court should allow "great latitude for cross-examination on the issues raised in direct examination." United States v. Stock, 948 F.2d 1299 (D.C. Cir. 1991). Included in the right of confrontation is the defendant's right to "delve into the witness' story to test the witness's perceptions. . . ." Davis v. Alaska,, 415 U.S. at 316. Reasonable limitations may be imposed on cross-examination. Chambers v. Mississippi, supra. However, "the denial or significant diminution [of cross-examination] calls into question the ultimate 'integrity of the fact-finding process' and requires that the competing interest be closely examined." Chambers v. Mississippi, Id. at 295.
In United States v. Foster, 986 F.2d 541 (D.C. Cir. 1993), this Court reversed a conviction where an "observation post" privilege had been invoked to preclude cross-examination of a police officer concerning his ability to identify defendant. Foster noted that counsel's questions were designed to test the officer's ability to effectively make an identification. "The right of the defense to engage in such lines of inquiry is at the heart of our system of criminal justice." Id. at 543-544. Foster also noted that the more important the witness, the more crucial that the cross-examiner be allowed wide latitude. Id. at 543.
Zecha's testimony was important because, despite the differences in descriptions, it tended to corroborate that of Agustadi that defendant, using the name Shunsuke Kickuchi, was likely involved in the incidents of May 14. (17) Agustadi had made an in-court identification of defendant as the individual she had briefly checked into the President Hotel some eleven years earlier. The shortcomings of what was at best a suspect identification, and at worst, a staged one, was highlighted by other startling inconsistencies in her testimony. Thus, with Agustadi's damaging, but suspect, identification, the corroborating testimony of Zecha took on an added dimension, reinforcing the weaknesses otherwise inherent in Agustadi's evidence.
Thus, it was crucial that counsel have full opportunity to confront Zecha with reliable evidence that she lacked the ability to identify people. Zecha's identification testimony was suspect on its face. She had initially given a description that did not match defendant, and fifteen months passed before she was first asked to make an identification of a customer she had only briefly seen. In evaluating Zecha's ability to make the claimed identification, the jury was entitled to know that she could not even make an accurate identification one day later of someone she had spent several hours with in a room.
Further, the proposed cross-examination was relevant to Zecha's bias. See Delaware v. Van Arsdall, 475 U.S. 673 (1986)(restriction of defendant's right to cross-examine for bias violates Sixth Amendment right of confrontation). Zecha had displayed no reticence in testifying on direct-examination, but on cross began to quarrel and repeatedly -- in testy terms -- profess an inability to remember -- so much so that the court had to admonish her to answer counsel's questions. (Tr. 853). This raised the legitimate issue as to whether Zecha was biased toward the government and deliberately testified falsely at the suppression hearing in an effort to convey the impression that she had not rehearsed her testimony. Our system is built on the obligation of witnesses to tell the truth. When a serious question is raised whether a crucial witness against a defendant has deliberately ignored that obligation, then denial of the right to confront the witness on the point is serious constitutional error. See James v. Illinois, 493 S. Ct. 307, 330 (1990)(legal rules should not be utilized to allow witnesses license to commit perjury without risk of cross-examination as to the prior inconsistent utterances); United States v. Havens, 446 U.S. 620, 625 (1980)(because of the "importance of arriving at the truth in criminal trials," witnesses' "obligation to tell the truth," and overriding policy that perjury not go unchallenged, cross-examination with reliable but illegally seized evidence was proper).
2. The Exclusion of Kerstens' Testimony
The court compounded the problem when it precluded the defense from calling FBI Agent Kerstens to testify concerning the Zecha meeting, which he had attended. Kerstens could have testified concerning how long Zecha was with the prosecutors and the circumstances, such as the close distance and lighting -- factors which the prosecution relied on to credit Zecha's identification of defendant. (Tr. 788-789). Defendant then proposed to introduce Zecha's suppression testimony, as former testimony under Rule 104. (18)
The exclusion of this testimony was also error. "[F]ew rights are more fundamental than that of an accused to present witnesses in his own defense." Chambers v. Mississippi, 410 U.S. at 302. Zecha's inability to identify the prosecutors under circumstances more propitious than those leading to her identification of defendant was a "matter properly provable." United States v. Foster, 986 F.2d at 545.
VII. THE COURT ERRED IN ADMITTING A VIDEOTAPE ALLEGEDLY SIMULATING WHAT WOULD HAVE OCCURRED HAD THE PROJECTILES EXPLODED.
A. Procedural History
Shortly before trial the government filed a motion seeking to introduce "demonstrative videotaped experiments," of an explosion of a similar amount of TNT as that allegedly in the projectiles. (R. 119). The motion alleged the experiments were not recreations of the crime, (19) but rather admissible to illustrate applicable "scientific principles." Id. at 10-11. A second basis of admissibility was that the experiments showed "the capability of the defendant to commit the criminal acts." Id. at 12. The government had previously argued that the videotape was also relevant to defendant's intent to kill. (Tr. 10-7-97, 123-125). Defendant moved to exclude the videotape. (R. 155). Defendant argued that the demonstration was not sufficiently similar to the offense in that it was an explosion set off on the ground with a different form of TNT and that, in any event, the prejudicial value of the evidence far outweighed its probative value. Further argument was held on the issue prior to opening statements, (Tr. 10-15-97, 33-37; Tr. 10-21-97, 346-354), and during trial. (Tr. 2359-2364).
The court excluded part of the videotape on Rule 403 grounds. (Tr. 10-21-97, 348-349). The court indicated that it would rule on the factual foundation after hearing evidence as to the purported similarity between the explosion and the event. Id. at 350, 352. However, at trial the court admitted the evidence without conducting a voir dire hearing requested by defendant. (Tr. 2363-2364).
B. The Evidence
The government concluded its case by having FBI Agent Robert Heckman testify concerning his experiments. A videotape of the explosion was then played. (Tr. 2449-2465).
The videotape begins with a shot of several silhouettes near a small white device, which is then detonated by means of a fuse, whose firing is delayed for over four minutes to increase the dramatic effect. The viewer then sees a large fireball accommpaned by a loud explosion. For approximately five more minutes the videotape depicts closeup and repetitive shots of the silhouettes, which appear to have sustained substantial damage. The Court instructed the jury that the evidence was admissible on the issue of whether the projectiles were explosives and whether the person who designed them had an intent to kill. (Tr. 2463-2464).
Heckman testified that he set off an explosion on the ground with one pound of TNT. He did not use the same flake form of TNT found in the projectiles. Instead, he used cast TNT, the most potent of the three forms of TNT. (Tr. 2448-2455). Both Heckman and FBI chemist Burmeister testified that the solid cast form of TNT produced the most potent blast because of the lack of air gaps found in the other two forms -- pelletized and flake. (Tr. 2297-2300; 2451-2455). Burmeister admitted that the degree to which flake TNT would approach the effectiveness of cast TNT would depend on how tightly the flake TNT had been packed into the projectile. The government never offered any evidence on this point.
The government admitted that Heckman had initially attempted to conduct the experiment using pelletized TNT, unsatisfied with the result, Heckman conducted further experiments using the more volatile form of TNT. (Tr. 2359-2360).
The government attempt to play the videotape again during its closing argument, but the court denied permission, commenting: "That exhibit was on the thin edge all the way through the trial. . . ." (Tr. 2655-56).
While a court has discretion to permit evidence of experiments, the proponent must overcome two obstacles. First, the burden is on the party offering such evidence to lay a proper foundation by establishing similarity of condition and circumstances. United States v. Gaskell, 985 F.2d 1056 (11th Cir. 1993). The conditions must be "sufficiently similar so as to offer a fair comparison" to the event in question. Jackson v. Fletcher, 647 F.2d 1020, 1027 (10th Cir. 1981). Second, Rule 403 concerns are particularly noteworthy in this area, as a "visual image of what allegedly occurred can imprint on the jury's mind" one party's version of the events. United States v. Wanoskia, 800 F.2d 235, 238 (10th Cir. 1986); United States v. Gaskell, supra.
Here, the government did not lay the foundation of substantial similarity. Setting aside the fact that the Jakarta projectiles did not explode, the means of setting off the tightly controlled experimental explosion on the ground under laboratory- type conditions differed markedly from sending a primitive projectile several hundred yards from a homemade launcher. More important, the FBI-created explosion used cast TNT, the most densely known version of the substance and the one designed to explode with the most effect.
In Gaskell the 11th Circuit held that it was reversible error in a prosection of defendant for the murder of his child to allow a doctor to conduct an experiment using a doll to demonstrate the amount of force necessary to cause the infant's injuries. The court noted that the conditions were not substantially similar because of differences between a doll and a human being and the lack of any testimony correlating the number of oscillations of the doll's head in the experiment to that necessary to cause the actual injuries. Equally important, the court held that the slight probative value of the evidence was "overwhelmed by its unfair prejudicial effects," noting that such a demonstration of force "was likely to form a strong impression upon the jury." Id. at 1061.
Like Gaskell, the use of a different form of TNT with its resultant different density, the differences in the method of projection, and the anatomical differences between silhouettes and the human body, all deprived the videotape of the requisite substantial similarity.
The Court also erred in refusing to conduct a jury-out hearing on the foundational issues pursuant to Rule 104(b), FRE. Counsel could not effectively challenge Heckman on the foundation in the presence of the jury without emphasizing the prejudicial nature of the videotaped explosion. Further, even if counsel did succeed in this regard, striking the videotaped explosion would have been ineffectual.
The probative value of the tape was diminished in several respects. First, there was no actual explosion in the Jakarta attacks. Second, as the court remarked, Heckman could easily have described what would have occurred had the TNT in the projectile detonated. (Tr. 2361). This coupled with the evidence of the numerous people in the Embassy would have been more than sufficient to establish the point for which the tape was offered. Finally, the use of the silhouettes was unduly inflammatory and prejudicial. See United States v. Jones, 124 F.3d 781, 787 (6th Cir. 1997)(upholding admission of explosion evidence in part because district court had excluded depiction of silhouettes hit by the shrapnel and gravel). Thus, like Gaskell, the prejudicial effect of the explosion "overwhelmed" its slight probative value.
VIII. The court erred in denying defendant's motion to suppress statements he allegedly made while en route to the United States
A. Procedural Background
The defendant filed a motion to suppress statements allegedly given by him on the airplane trip from Nepal to the United States. (R. 23). A hearing was held on this motion and testimony was taken from FBI Agent Beisner and FBI interpreter, Hong An. (Tr. 5-5-97, 6-130; 5-6-97, 4-14). The court issued a memorandum opinion denying the motion to suppress. (A. 10).
B. The Testimony
After his arrest in Nepal, defendant was flown here on a U.S. military plane. On board were 10-12 FBI agents, including an "interview team," FBI supervisory personnel, and military and other non-agent personnel. (Id. 9, 11, 42-43, 46, 54).
Defendant was placed in a small area, cordoned off by a curtain, in the back of the plane. He was kept in handcuffs and leg irons. These restraints remained when defendant was later approached and questioned by the FBI agents. (Id. 10, 28-29, 60-61; Tr. 5-6-97, 14).
Approximately two hours into the flight the "interview team" went to the back of the plane. Defendant was then read forms advising him of his Miranda rights in English and Japanese. (Id. 20, 102). Although both forms contained a place for the defendant to acknowledge that he understood his rights and waived them, the defendant did not sign and indicate assent to either of these propositions. (Id. 20, 72, 80; Tr. 5-6-97, 104). However, defendant said he understood his rights, remarking that he would not waive them, but "will speak." (Id. 20, 22, 103-104, 116). Defendant then simply expressed his antipathy towards the United States government and his sympathy with the Palestinians. (Id. 104-05, 125). However, defendant made it clear he would not answer questions and the agents left. (Id. 127).
Approximately eight (8) hours later the agents decided to try again. Defendant was re-advised of his rights and the agents again attempted to get the waiver signed. (Id. 21, 107). Defendant again refused to sign a waiver, stating that he would not waive his rights, but was "willing" to talk to the agents. (Id. 21- 22, 67, 81-82, 84 107, 116). The agents then spoke with defendant for the next 2-3 hours. During this time they asked "countless questions," to which defendant responded only with a "smile and nod," especially when asked anything directly about the Jakarta incident. (Id. 24-25, 29, 82-85, 110). At times, defendant indicated his reluctance to respond to questioning by turning his palms up in a manner which the translator understood to communicate his desire that his questioners "buzz off." (Id. 111, 128). Defendant would only respond "once in a while," (Id. 85) and refused to acknowledge his name or previous whereabouts or identify or answer questions concerning his property. (Id. 31, 83-84). Nor would he respond when questioned him about Jakarta. (Id. 29). He acknowledged knowing some members depicted on a Japanese Red Army poster, and acknowledged Beisner's statement that the rockets launched in Jakarta had not exploded.(Id. 25-26, 84, 86-87). (20)
1. Miranda v. Arizona
The Fifth Amendment privilege against self-incrimination embodies the concept "that ours is an accusatorial not an inquisitorial system -- a system in which the state must establish guilt by evidence independently and fairly secured and may not by coercion prove its charge against an accused out of his own mouth." Rogers v. Richmond, 365 U.S. 534, 541 (1961).
In Miranda v. Arizona, 384 U.S. 436 (1966), the Court discussed at length the factors which are present when the police question a suspect whom they have in custody - factors which may indeed help the police secure convictions, but which also undermine the framers intention to avoid historical abuses by adopting an accusatorial rather than inquisitorial system of criminal justice. 384 U.S. at 445-455. These dangers begin with the strategy of "incommunicado interrogation" with the suspect "cut off from the outside world" and subjected to a "police-dominated atmosphere." Id. at 445. The Court acknowledged the psychological advantage of isolating the suspect from family, friends, or advisors. Id. at 449-450.
The danger of psychologically coercing a statement against the will of the suspect is increased in such a police-dominated atmosphere, as the interrogator is tempted to persist in "relentless questioning" even though the accused has attempted to communicate that he does not wish to answers questions. Id. at 455. The purpose of creating an environment of isolation of the suspect for questioning is "for no purpose other than to subjugate the individual to the will of his examiner." Id. at 457.
To give meaning to the core values of the Fifth
Amendment, Miranda requires that prior to
any questioning an in-custody suspect must be advised of various constitutional rights. Id. at 444. The suspect is not to be placed in a
situation where he must continually resist his interrogator's repeated unwanted
2. The Government's Burden to Establish
"The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently." Id. at 444. However, the government bears a "heavy burden" when it attempts to demonstrate that a defendant has knowingly and intelligently and voluntarily waived these rights. Id. at 475; North Carolina v. Butler, 441 U.S. 369, 373 (1979). The burden is "great", United States v. Heldt, 745 F.2d 1275 (9th Cir. 1984), as a "waiver of one's constitutional rights is not to be lightly inferred." McDonald v. Lucas, 677 F.2d 518, 521 (5th Cir. 1982). "Courts must indulge very reasonable presumption against waiver of fundamental constitutional rights." Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
A refusal to sign a waiver does not result in a per se rule of inadmissibility. North Carolina v. Butler, supra. The refusal to sign is an important factor, however, to be evaluated under the totality of the circumstances. Id. Some cases have found a knowing and intelligent and voluntary waiver despite the fact that the defendant refused to sign the presented written waiver. United States v. Kord, 836 F.2d 368, 375 (7th Cir. 1988); Martin v. United States, 691 F.2d 1235 (8th Cir. 1982). Other courts, recognizing that the refusal to sign at a minimum represents an ambiguity, if not an outright indication of a lack of waiver, have found the refusal to be the most important, if not overriding, factor in finding the government failed to meet its burden. United States v. Heldt, 745 F.2d 1275 (9th Cir. 1984); McDonald v. Lucas, 677 F.2d 518 (5th Cir. 1982). In Heldt, the court noted:
"[The] refusal to sign the printed waiver
form casts initial doubt on any claim that [defendant] waived his Miranda right. Most persons attach considerable
significance to the refusal to sign. By presenting a waiver form for signature, and then
proceeding in the face of a refusal to ask if he may ask questions anyway, the police
officer at best created an ambiguous situation. [Defendant] could reasonably have believed
that he waived nothing because he had refused to sign." United States v. Heldt, 745 F.2d 1275 (9th Cir.
745 F.2d at 1275. At a minimum an explicit refusal to sign a waiver "measurably increases the prosecution's burden." United States v. Van Dusen, 431 F.2d 1278, 1280 (1st Cir. 1970). When the accused has explicitly refused to sign a written waiver, the mere fact that "[he] understands his rights, is not threatened, [and] is not physically harmed" is not, standing alone, sufficient to show a valid waiver. McDonald v. Lucas, 677 F.2d at 521.
3. The Government Did Not Met Its Burden of Showing Under the Totality of the Circumstances That Defendant Knowingly and Intelligently and Voluntarily Waived His Constitutional Rights
Viewed against the backdrop of the government's heavy burden and the presumption against waiver of constitutional rights, the court erred in denying defendant's motion to suppress.
To begin with, the circumstances implicated all the concerns discussed in Miranda. Defendant was held in more of an incommunicado status than situations that drew the court's concern in Miranda. He had been removed by the Nepalese, put on a military plane, and told that he was being taken to the United States. There was no showing that defendant has any relatives or friends in the United States, knows anyone here, or has ever been in this country. There was no showing that he had been given an opportunity to contact a representative prior to being taken to the aircraft or after being taken aboard. (Tr. 5-5-97, 52-53). While the Miranda warning informed defendant of his right to counsel, no arrangements had been made to have counsel or any other representative available. (Id. 52).
Miranda acknowledges the coercion involved when a suspect is left alone in the presence of multiple police officers. Here, defendant was alone in the sole custody of at least 40 representatives of the authorities who had arrested him and were preparing to remove him halfway around the world. This was precisely the police-dominated atmosphere of which Miranda spoke. Defendant was "deprived of outside support" to a degree far greater than the normal interrogation situation envisioned by Miranda. 384 U.S. at 449-450. Before proceeding to Nepal the agents knew that they would have defendant in their custody and incommunicado with the outside world for more than a day prior to his arrival in the United States. The coercive significance of the situation in which defendant was trapped is demonstrated by United States v. Hernandez, 574 F.2d 1362, 1368 (5th Cir. 1978), where the court, in holding that police had not "scrupulously honored" the defendant's refusal to be interrogated, noted that the defendant was held "incommunicado without any possible access to any attorney" for five hours in a room with "more than three officers present".
To add to the intimidating atmosphere of the interrogation, defendant was kept in handcuffs and leg shackles during both attempts to interrogate him. (Tr. 5-5-97, 28, 60-62; Tr. 5-6-97, 14).
Miranda enjoins any questioning "if the individual is alone and indicates in any manner that he does not wish to be interrogated. . . ." 384 U.S. at 445. The mere fact that defendant volunteers some information does not allow officers to persist in attempts to question him when he also indicates he does not want to answer questions. Id. After the agents approached defendant, advised him of his rights, and presented him with the waiver, defendant refused to sign. The facts belie to a large extent the agents' attempted characterization of defendant's desire to talk. Clearly defendant had no desire to answer their questions. Even though defendant said "he wanted to talk a little," the agents understood that he only, at most, wanted to make a statement condemning what he believed to be the imperialistic policies of the United States., (Tr. 5-5-97, 104-105, 125). Defendant contemporaneously made it clear that he did not want to answer the agent's questions. (Id. 116, 127). The fact that the defendant may give some information on his own does not demonstrate that he was otherwise waiving his rights and consenting to interrogation. 384 U.S. at 475-76.
The police must "scrupulously honor" a defendant's desire not to be interrogated. Id. at 467; Michigan v. Mosley, 423 S. Ct. 96 (1975). Here, as in Mosley, the agents returned and again advised defendant of his rights. Defendant did not invite them to return; nor had he indicated that he wished to make a further statement or reconsider what he had previously communicated - that did not wish to answer their questions. (Tr. 5-5-97, 82). Unlike Mosley, the police were not returning in an attempt to interrogate defendant about a different matter. See Hernandez, 574 F.2d at 1362.
The agents made no effort to clear up the ambiguity created by defendant's refusal to sign the waiver simultaneously with his expression of a "willingness" to talk. They did not ask why he would not sign the waiver if he purportedly was willing to speak. Id. The agents simply began to interrogate defendant. Defendant's subsequent actions also cast doubt on the agents' assertion that defendant was willing to speak. Beisner could hardly get defendant to answer any questions, posing "countless questions" to which defendant would only "smile and nod." (Tr. 25, 29, 84-85, 110). The FBI translator understood defendant to be telling the agents to "buzz off." (Tr. 111, 128). Even if further indication was necessary after defendant refused to sign the waiver and indicated he did not wish to submit to questioning, the gestures -- the meaning of which his inquisitors understood -- constituted an invocation of his rights within the meaning of Miranda's injunction that any manner of communication is sufficient to terminate questioning.
Defendant hardly manifested a willingness to talk when he would not acknowledge his name, identify his property or answer any questions about his whereabouts or the Jakarta incident. (Tr. 29, 31, 84-85). See United States v. Dell'Aria, 811 F. Supp. 837, 844 (E.D.N.Y. 1993)("silence in the face of custodial questioning aimed at eliciting only pedigree information, even absent substantive inquiries, may suffice as an invocation of Fifth Amendment rights."). The picture that emerges is not that of a interlocutor willing to speak despite his refusal to the sign the waiver. Defendant was questioned for 2-3 hours, but apparently only responded "once in awhile." (Tr. 5-5-97, 24-25, 82, 85). A defendant's refusal to sign a waiver, refusal to engage in a generalized discussion of his case, and non-responsiveness to express questions are all strong indicators that the defendant did not validly waive his rights. United States v. Perez, 948 F. Supp. 1191, 1199 (S.D.N.Y. 1996).
Here, as in Heldt, 745 F.2d at 1277, defendant not only refused to sign the waiver, but specifically told the agents he did not want to answer questions. That the agents would proceed to question and press defendant despite his reluctance is hardly surprising. The suppression remedy was hardly a disincentive to pursue information not only concerning the Jakarta attack but also as to the location of JRA fugitives in which the FBI had a strong interest. If the agents could coax defendant into giving information concerning the location of a wanted JRA fugitive, the fact that the information was obtained in violation of defendant's rights would be of no benefit to the fugitive. The incentive to proceed and get whatever information they could was even stronger in light of the assumption that defendant would no longer talk after appointed counsel. (Id. 29, 49-50, 85-86).
The evidence did not support a finding that the government carried its heavy burden of showing that defendant knowingly, intelligently, and voluntarily waived his privilege against self-incrimination.
For the above stated reasons, this Court should reverse defendant's conviction and remand for a new trial.
CERTIFICATE OF LENGTH
I hereby certify that, according to counsel's word processing count, the foregoing Brief for Appellant does not exceed 15,000 words.
Robert L. Tucker
Assistant Federal Public Defender
CERTIFICATE OF SERVICE
I hereby certify that on September 8, 1998, I have served by first-class mail, postage prepaid, two copies of the foregoing Brief for Appellant on Attorney John Depue, Terrorism and Violent Crime Section, Criminal Division, U.S. Department of Justice, Box 7179, Washington, D.C. 20530
Robert L. Tucker
1. Count One: assault with intent to murder a person within the grounds of the United States Embassy in violation of 18 U.S.C. § 113(a);
Count Three: willfully attempting to injure the United States Embassy in violation of 18 U.S.C. § 1363;
Count Four: willfully attempting to murder internationally protected personnel in violation of 18 U.S.C. § 1116;
Count Five: attempting to make a violent attack upon the United States Embassy in violation of 18 U.S.C. § 112(a).
2. As discussed below the government subsequently introduced evidence pertaining to numerous additional offenses.
3. The government did not directly respond to the court's inquiry concerning evidence to support the critical allegation concerning the purpose of the robberies.
4. Farrell testified that it was his "understanding" that the robberies were for the purpose of fund-raising. (Tr. 887). No basis for this assertion was given. Farrell's bald assertion was more questionable in light of the fact that the Japanese police officer, Takashashi, who investigated the offenses, provided no such linkage. As with much of Farrell's testimony there was no assurance of the reliability of his sources. See Argument 5, supra.
5. Wounding Through Robbery (1)
Preparation for Robbery (5)
Traffic Law Violation (1)
6. The court seemed to recognize this danger when it remarked that "the motive testimony can be blown way out of proportion." (Tr. 10-7-97, 32).
7. There was no such evidence other than Farrell's assertion that the attacks were consistent with JRA philosophy and his speculation that they may have been involved. (Tr. 901-903).
8. The Court later orally clarified parts of this Order. (Tr. 600-606).
9. The district court instructed the jury to disregard part of this answer, though Farrell almost immediately thereafter affirmed that the JRA used "violent or armed activities" to accomplish its goals. (Tr. 895-896).
10. It was Farrell's "understanding" that the robberies involved extensive planning and surveillance. (Tr. 886-887).
11. The court had for this particular reason precluded Farrell from testifying as to many of the specific acts of violence requested by the government. Farrell's testimony relating to these incidents in general terms did little to alleviate the prejudice.
12. In objecting, counsel stated that the word "terrorism" had already been used 10-12 times during Farrell's testimony. The court thought it was fewer. The transcript reveals the word had already been used 11 times during Farrell's testimony at the time of the objection. Id.
13. Exhibit 22 was not only irrelevant but also hearsay, purporting to be a statement from an unknown individual that defendant was a "terrorist" and a member of the JRA. Although the government ostensibly elicited the Hartman testimony to explain where he obtained the photographs he used, the government's argument at the conclusion of trial to admit the exhibit revealed its true purpose -- to show that the individuals depicted thereon -- including defendant - were members of the JRA. (Tr. 2492). Offered for this purpose, the photographs were clearly hearsay.
14. The government did not immediately reveal this false testimony when Zecha was on the stand, but waited until the next day when it had an opportunity to discuss the matter with her.
15. At this time counsel marked for the record a note that had been given to him by the prosecutor in response to the court's order. (A. 76; Tr. 864).
16. The prosecutors stipulated that the meeting lasted from two to three hours and took place the day prior to the denials given by Zecha at the suppression hearing. (Tr. 2557).
17. The third witness, Esther Summampouw's identification testimony, was not as damaging, as she had only identified defendant as an individual she had allegedly checked into another Jakarta hotel approximately three weeks prior to May 14.
18. The parties agreed that Zecha was then unavailable within the meaning of Rule 104, having returned to Indonesia.
19. This was actually one of the problems with this evidence, which depicted an explosion that never occurred.
20. Beisner testified that defendant did not actually state that he was aware that the Jakarta rockets had not exploded but merely said "yes, I know" in response to Beisner's statement in English that "you know that the bombs did not explode in Jakarta". (Id. 86-87, 89). The intended inference of involvement from this knowledge was weak. Beisner testified that he did not inquire as to the source of defendant's knowledge despite the fact that the attacks had been widely publicized. (Tr. 1092-95). Further, both the FBI translator and another FBI agent testified as to the lack of cultural significance to defendant's simple response of "yes" when asked if he knew the projectiles had not exploded. (Tr. 1117, 1536).