the D.C. Jail, even though such shackling is perfectly legal under the applicable regulations given defendants' status under U.S. Bureau of Prisons and D.C. Department of Corrections policies. See note 38, supra. The Court is not about to import shackling into the courtroom unless that becomes absolutely necessary.
In sum, the Court has canvassed the possible alternatives to a plexiglass partition, and it has concluded that there are no practical alternative security measures of comparable efficacy that are less intrusive. The alternative that remains -- the one to which defendants obviously point their arguments -- is the absence of any and all security measures, and reliance instead on the hope that defendants will cause no problems, that they will not disappear from the courtroom even if that was not difficult to do. The Court and the United States Marshal would be acting irresponsibly if, given defendants' record of escape, fugitivity, and violence, they took no security precautions based on that hope. Certainly, no one would be justified in assuming that individuals who appear sincerely to believe that they have a moral or political duty to escape would be false to that conviction if given the opportunity to implement it.
In any event, the Court has neither the obligation nor the intention, given the defendants' past performance, to order the United States Marshal to eliminate the existing security measures, which the Court finds to be both reasonable and necessary. The motion will therefore be denied.
Defendants Whitehorn, Evans, and Buck move to dismiss the conspiracy count on the basis that it fails to specify an illegal agreement to commit an offense against the United States, the argument being that the object of the conspiracy was largely legal and protected associational activity. In the same vein, these defendants assert that many of the manners and means and overt acts described in the indictment are protected activity, such as the issuance of communiques and the writing of letters.
This motion covers much of the ground already amply discussed above, e.g., in Parts I and II.
There is no doubt that the right to associate with others to advocate political beliefs is constitutionally protected. Brandenburg v. Ohio, 395 U.S. 444, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969). Similarly, it is not illegal to join a group that advocates the violent overthrow of the government. Noto v. United States, supra, 367 U.S. at 297-98. If that were all that was charged in the indictment, the charges against the defendants would be subject to dismissal. In this case, however, as the Court has had to repeat again and again, more has been charged.
The goal of the conspiracy described in the indictment is not simply to bring about change in United States policies, but to seek to do so using "violent and illegal means." In fact, the indictment goes further: it charges that the defendants have already employed such violent and illegal means. Eight different bombings are listed in the overt acts section of the conspiracy count; these three defendants are also described as being personally involved in various other illegal acts, ranging from the possession and use of false identification papers to the possession of firearms.
To be sure, some of the activities listed as manners and means or overt acts may be legal First Amendment activities; however, the law does not require that all the actions listed as overt acts in a conspiracy case be illegal. United States v. Rabinowich, 238 U.S. 78, 86, 59 L. Ed. 1211, 35 S. Ct. 682 (1915). Furthermore, as indicated, many other alleged actions of the defendants, such as blowing up buildings and possessing explosives and unauthorized weapons, are plainly illegal. Even speech that is likely to incite bombings is explicitly excepted from Brandenburg's protections, 395 U.S. at 447; certainly actual bombings are not protected.
The motion of defendant Whitehorn, Evans, and Buck will be denied.
Defendants Berkman, Blunk, and Rosenberg have moved for a dismissal of the indictment against them, asserting that it violates the Double Jeopardy Clause of the Constitution. U.S. Const. Amendment V.
The Supreme Court explained in North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), that the Double Jeopardy Clause protects defendants against three distinct governmental activities: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. It is the second of these protections that, according to defendants, is violated by this indictment. In order to appreciate that claim, it is necessary to detail the rather unusual juxtaposition of fact and law that underlies the indictment of these defendants.
Defendants Blunk and Rosenberg were arrested in Cherry Hill, New Jersey, on November 29, 1984, as they were attempting to unload a large quantity of explosives and weapons from a U-Haul trailer into a rented public storage area. They were subsequently charged in the District Court for the District of New Jersey with conspiracy to receive and possess weapons and explosives and with numerous substantive counts involving possession and transportation of weapons and false identification documents. After a lengthy trial, both defendants were convicted, and each was sentenced to imprisonment for 58 years.
Defendant Berkman was arrested on May 23, 1985, also while in possession of explosives, weapons, and false identification papers. He was indicted, tried, and convicted in Philadelphia, in the District Court for the Eastern District of Pennsylvania, of conspiracy to possess firearms, explosives, and false identification papers, and of fourteen substantive counts charging possession of such items. On May 29, 1987, Berkman was sentenced to a term of ten years imprisonment and five years probation. Subsequently, he pleaded guilty to bail jumping, for which he received a consecutive two-year sentence, and he entered a plea of nolo contendere to a charge of armed robbery in Connecticut where he was given a concurrent two-year sentence for that offense. Berkman is accordingly now serving an effective total sentence of twelve years.
Neither the conspiracy of which Berkman was convicted in Philadelphia nor the conspiracy of which Blunk and Rosenberg were convicted in New Jersey included as formal elements of these offenses the acts of bombing
charged in the indictment in this Court.
Thus, under the traditional double jeopardy test generally attributed to Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932)
-- whether each offense involves proof of an element that the other does not -- defendants' argument would have to be summarily rejected. Under Blockburger, the double jeopardy inquiry focuses only on the statutes violations of which are charged: does the statutory violation charged in the second indictment require proof of an element or elements that were not required to be proved under the statute involved in the first indictment, and vice versa? If the answer is in the affirmative, the double jeopardy defense fails. The government opposes defendants' motion on just that basis.
However, in the years since Blockburger was decided, refinements have emerged in double jeopardy law which require an analysis of the facts necessarily proved and to be proved in the two prosecutions, as distinguished merely from the formal charges themselves. And the facts in this case are compelling. Because there is no direct evidence of any defendant's involvement in the bombings, and because the circumstantial evidence linking these three defendants to the bombings consists of their involvement in the conspiracy for which they have already been convicted, the government must relitigate and reprove the prior conspiracy trials in full; and it intends to do so. This creates a substantial double jeopardy problem. See Illinois v. Vitale, 447 U.S. 410, 420, 65 L. Ed. 2d 228, 100 S. Ct. 2260 (1980); United States v. Allen, 539 F. Supp. 296, 311 (C.D. Cal. 1982). Before discussing these legal developments in detail, it is appropriate for a better understanding of the issues to relate what was alleged and proved in the previous trials of these defendants and what the government expects to prove with respect to them here.
B. The Charges Are the Same
Put simply, as will be explained below, insofar as proof of the culpability of these three defendants is concerned, the evidence that the government expects to use in this case will be precisely or almost precisely the same as that which it used to convict these defendants in their earlier trials.
It is useful to test this proposition by first comparing the formal charges here with the charges brought in the Philadelphia and New Jersey prosecutions of these defendants. As indicated supra, the indictment in the present case consists of one count of conspiracy to change the government by illegal and violent means (18 U.S.C. § 371) and four substantive bombing counts (18 U.S.C. §§ 844(f) and 2). In critical and substantial respects, the conspiracy count here replicates the conspiracy counts of which these three defendants have already been convicted.
In fact, of the 19 out of 66 overt acts charged here involving actions by these three defendants, 14 are identical to the overt acts charged with respect to the conspiracies of which these defendants have already been convicted. As for the remaining five overt acts, four relate no more specifically to the charges here than they did to the earlier charges,
and the fifth concerns evidence actually used in the Philadelphia trial.
The short of it is that the conspiracy count of the indictment in this case sets out no acts allegedly linking these defendants to the bombings that were not already previously charged and tried.137
Indeed, the government here concedes, as it must, that "the conspiracy charged in the Philadelphia indictment was merely a part of the bombing conspiracy which is set forth in count one of the District of Columbia indictment. As such, many of the same overt acts appear in both indictments."
Likewise, the government states that "the conspiracy charged in the Newark indictment was a part of the larger bombing conspiracy set forth in the District of Columbia indictment in which the defendants are charged as unindicted co-conspirators."
C. The Evidence Is the Same
Recognizing the double jeopardy problem that would result from charging these three defendants with conspiracy here after having convicted them of involvement in substantially the same conspiracy in the two previous trials,
the government has identified them in the conspiracy count of the current indictment only as unindicted co-conspirators, charging them criminally only with the substantive bombing counts. But that technical difference does not resolve the double jeopardy issue, for defendants' guilt of these substantive counts depends entirely upon proof of the conspiracy charge. For that reason, it is immaterial whether the defendants are indicted or unindicted for conspiracy; the conspiracy evidence can and will be used against them in either event. What is significant, however, and the subject that will now be discussed, is that the evidence linking these defendants to all the offenses charged in this Court, whether conspiracy or substantive, is the same evidence in critical respects as that which led to their previous convictions.
First. In response to questions by the Court, government counsel conceded that it has no evidence against Berkman that was not introduced in Philadelphia.
Indeed, in the prior Berkman trial, the government affirmatively claimed that the evidence there proved bombings -- the very bombings that are the subject of the indictment here.
In its trial memorandum in the Philadelphia case, the government stated that the "evidence . . . plainly link[s] Berkman to at least one bombing . . . and to planning for future 'actions' or 'attacks against the U.S. military,'" and it listed all the bombings for which the ARU or the RFG had claimed responsibility, including the four bombings charged in the indictment now before this Court.
In short, the Philadelphia trial memorandum demonstrates the correctness of government counsel's concession: what evidence there is of Berkman's involvement in the bombings charged in the current indictment was previously introduced at the Philadelphia trial and was used to convict him there.
Second. As to Blunk and Rosenberg, the situation is somewhat more complicated.
Counsel for the government stated in this Court that the evidence here would be the same as in the previous trial of these defendants, except for the additional evidence, having to do circumstantially with bombing, that was seized at the Alameda apartment house in Baltimore several months after Blunk and Rosenberg were convicted in New Jersey. However, that fact is not significant, for several reasons.
In the first place, as will now be seen, the proof at the previous trial of Blunk and Rosenberg also included evidence that could have been used to tie these defendants to the bombings -- the very offenses that are charged here -- just as did the proof produced at the first trial of Berkman.
The critical circumstantial evidence linking these defendants to the bombings are the 600 pounds of explosives, the explosive devices, and a driver's license bearing the name Susan Knoll, all of which were in Blunk and Rosenberg's possession at the time of their arrests in New Jersey, and all of which formed the heart of the conspiracy trial in Cherry Hill. According to the government, someone using the name Susan Knoll checked into a Washington, D.C. motel on the day before the Officer's Club bombing. In addition, similarities exist between the blasting caps and explosives found in New Jersey and those used in several bombings.
Following the arrest of Blunk and Rosenberg in New Jersey, the FBI conducted a detailed analysis of the explosives and explosive devices and noted the similarity between the blasting caps in their possession and those used in several bombings.
These facts are significant in two respects: (1) they demonstrate that evidence linking these defendants to the bombings in this case was in the government's possession at the time of their previous trial; (2) based on its presentation of this same evidence, the government will now ask the jury to draw different inferences than were drawn in Philadelphia.
To be sure, evidence from the Alameda apartment house does provide some further additional circumstantial links between the conspiracy as a whole and the bombings.
However, not only is that evidence cumulative; it suffers from an even more serious defect in this context: it no more links Blunk or Rosenberg directly to the bombings than did the New Jersey evidence; it only links other defendants to those acts. The only way Blunk and Rosenberg can be convicted of the bombings, therefore, is through proof of their involvement in the prior conspiracy, and that, of course, raises the very double-jeopardy problem that underlies the entire prosecution of these three defendants. Thus, while the current trial will include new evidence regarding the bombings themselves, the actions of other defendants, and of communiques issued by unknown individuals, the evidence regarding the involvement of Blunk and Rosenberg will be, fact for fact, witness for witness, all of the evidence that was used in the District Court for the District of New Jersey.
Third. The importance of the actual similarity of the evidence in the previous two trials with the forthcoming trial here cannot be overstated.
As the conspiracy charge in the indictment, as well as the representations of government counsel, reveal, the government intends to prove at this trial that Blunk and Rosenberg drove a rented U-Haul from New Haven, Connecticut, to Cherry Hill, New Jersey, on November 29, 1984; that Blunk rented the U-Haul under the alias of William J. Hammond; that they were arrested while unloading quantities of explosives into a rented self-storage area; that the weapons and explosives in their possession included 75 Dupont #8 Electric Blasting Caps, 25 Hercules Delay Electric Blasting Caps, 199 sticks of Hercules Unigel Tamptite Dynamite, 50 pound bag of Hercules "Hercomix," a blasting agent, 110 cartridges of Dupont Tovex 210 water gel explosives, 24 bags of Hercules Slurry Hp-374, a blasting agent, and detonating cord; and that also in their possession at the time of arrest were a Browning Hi-Power 9mm caliber pistol and a Ruger.223 caliber rifle.
As to Berkman, the government intends to prove that he drove from Philadelphia, Pennsylvania to Doylestown, Pennsylvania, with Elizabeth Duke on May 23, 1985 in a blue Toyota registered in the alias of Francis Marshall; that false identification documents were in the Toyota; that they possessed keys to a garage in Doylestown rented in the name of Karen Baker; that in the garage were over 100 pounds of explosives, an UZI semi-automatic rifle, handguns, and manuals on firearms, munitions and explosives; and that he wrote a letter discussing the motivation behind an ARU communique claiming credit for the Capitol bombing and had another communique in his possession.
The proof of these allegations will necessitate testimony from witnesses including the arresting officers, the introduction of photographs, and of a large number of documents and other physical evidence.
Both with respect to Blunk and Rosenberg and with respect to Berkman, all of this evidence will duplicate in every detail the evidence used in the earlier trials to convict these individuals.
While it may seem strange that this should be so, given that the charges brought in Philadelphia and New Jersey differ from those that are pending here, this is largely explained by the fact that the critical evidence on all three conspiracy charges and on the substantive counts in the current indictment
is purely circumstantial,
and that the government is simply asking the jury in each instance to draw a different inference from that circumstantial evidence.
In the previous trials, defendants' possession of dangerous items, and in one instance the writing of "bombing" letters, were used to support the inference that they conspired to possess and transport firearms, explosives, and false identification; in the trial to be conducted here that same evidence is expected to be used to support the inference that the defendants aided and abetted the commission of the bombings that are the crux of the current conspiracy and substantive charges.
In short, the actual conduct for which these three defendants are being tried is the same as that for which they were tried previously.
In an effort to overcome this problem, the government argues that, unlike in this case, no evidence of the occurrence of bombings was offered or was needed to convict in the previous trials.
That is certainly true.
But, as we have seen, the proof as to the responsibility of these defendants for these acts will be the same proof as was used in the earlier trials.
Thus, the question before the Court
is whether the Double Jeopardy Clause is violated if, at two successive trials involving the same defendants, the evidence that will be used in the second trial is necessarily
identical to that which was used to convict these defendants in the first trial. Can the government relitigate previous trials, in their entirety, witness by witness, document by document, for weeks or months, in order to convict defendants of conduct that is different in name but not otherwise?
D. Decisions Enlarging Upon Blockburger
As indicated supra, refinements of Blockburger have emerged in the last fifty years that do not make the answer to the double jeopardy question depend solely upon the more or less technical circumstance that one of the offenses contains an element that the other does not.
The Supreme Court recognized some time after Blockburger that the standards of that decision do not necessarily suffice to protect the defendant from double jeopardy in successive prosecutions. As the Court said in Brown v. Ohio, 432 U.S. 161, 166 n.6, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977):
The Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense. Even if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first (emphasis added).