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United States v. Bowe

decided: April 28, 1966.


Waterman, Moore and Friendly, Circuit Judges.

Author: Moore

MOORE, Circuit Judge.

On March 2, 1965, an indictment was filed against appellants Walter Bowe, Robert Collier, and Khaleel Sayyed*fn1 charging them with conspiring to destroy government property and to smuggle explosives into the United States, in violation of 18 U.S.C. §§ 371, 545 and 1361;*fn2 and with smuggling in violation of 18 U.S.C. § 545. Subsequent to the denial of appellants' motions to dismiss the indictment on the grounds that it was legally insufficient and that the grand jury had been improperly selected, trial was commenced on May 17, 1965. At trial the Government attempted to show that the appellants had devised a plan to destroy certain national monuments, to wit, the Statue of Liberty in New York harbor, the Liberty Bell in Philadelphia, and the Washington Monument, and that they intended to carry out their plan with the aid of explosives which they arranged to have smuggled into the United States from Canada. The Government's chief witness was Raymond Wood, an undercover agent of the New York City Police Department. He testified that he first met Collier in December, 1964 and that he first met Bowe and Sayyed at a meeting at Collier's apartment on January 19, 1965, called to devise a way "to get next to this country." At that meeting, according to Wood, Bowe suggested blowing up the Statue of Liberty but Sayyed felt the project was too big and urged that they conduct stick-ups in Harlem. Wood and Collier objected to the stick-up proposal and after Wood stated, "I think Bowe has the best plan and I think we ought to go along with that one," Sayyed voiced his approval. As the meeting ended, they all agreed to make separate trips to the Statue of Liberty and to meet again on January 26. Wood testified that at the January 26th meeting they all reported on their trips to the Statue and that Bowe indicated on a replica of the Statue where he thought the explosives should be placed. Then, Collier informed Bowe and Sayyed that he and Wood were going to Montreal where his girl-friend, Michelle Saunier, would provide them with dynamite, and they discussed the problem of smuggling the explosives into the United States. Subsequently, according to Wood, Bowe said that he thought the job was too easy to require the efforts of all four and that they ought to consider blowing up the Liberty Bell and defacing the Washington Monument. Sayyed allegedly replied that he knew a friend who would love to get in on something of that nature.

On January 29th Wood and Collier drove to Montreal. There, they stayed at Michelle Saunier's apartment and met with Michelle Duclos, a member of a Quebec separatist organization, who told them she would bring some explosives to New York on February 15th.

Upon returning to New York, Wood and Collier met a third time with Bowe and Sayyed and, according to Wood, Collier told them that "the stuff" would arrive on February 15th and asked them all to pitch in $25 to pay for it. No other meeting was planned until after the delivery of the explosives.

Finally, Wood testified that on February 16th Duclos informed him in New York that the explosives were hidden at the back of a parking lot at West 239th Street; and, that after he checked the accuracy of Duclos' report, he picked up Collier and they drove to the lot. On the way, Wood said that Collier informed him that he had been to the Statue a few days before and that he felt the best place to plant the dynamite was beneath two main supporting beams he had observed. When they arrived at the lot, Collier picked up the dynamite and while taking it to the car was arrested.

Both Bowe and Sayyed took the stand and attempted to establish that all plans for violent action had originated with and had been suggested by Wood. Bowe testified that he was an experienced judo instructor and that he had attended the meetings with Wood, Collier, and Sayyed in order to recruit judo students. He said that when Wood suggested blowing up the Statue of Liberty at the January 19th meeting he had replied "why not the Liberty Bell and the Washington Monument, too," and that Wood had said that was a good idea. Sayyed testified that he never intended to participate in any violent action; that he had strenuously resisted all suggestions by Wood relating to destroying national monuments and that he told Wood the Student Non-Violent Coordinating Committee's program of non-violent demonstration was his method of showing dissatisfaction.

Collier did not testify in his own behalf, but his attorney offered to put witnesses on the stand who, he asserted, were prepared to testify that during the spring and summer of 1964, Wood had urged them to participate in certain violent action in New York City, e.g., blowing up the Statue of Liberty and sewers, and stick-ups in Harlem. He argued that the testimony was crucial to the defense of entrapment in that it would impeach Wood's testimony and show his intent toward the appellants. The Government objected to the introduction of such testimony and the court sustained the objection on the ground that the slight probative value of the testimony was outweighed by its propensity to confuse the jury and unnecessarily prolong the trial by introducing collateral issues.

On June 14, 1965, the jury returned verdicts of guilty as to Bowe, Collier and Sayyed on both counts of the indictment and on June 17, 1965, judgments of conviction were entered against them from which the present appeal is taken. Appellants allege that numerous errors were committed during the proceedings below, some of which relate to pre-trial matters, and some of which relate to actions taken and rulings made by Judge Herlands during the trial. We conclude that appellants' allegations are without foundation and affirm the convictions.

I. Pre-trial :

(A) Grand-jury selection : On March 30, 1965, appellants moved to quash the indictment on the ground that the grand jury was improperly selected in that Negroes, Puerto Ricans, blue collar workers and people of lower income were systematically and intentionally excluded from the grand jury array. The motion was not supported by any affidavit or other proof and was denied without a hearing on April 7, 1965. On April 28, 1965, another motion was filed seeking identical relief, this time supported by an affidavit of Collier's attorney, Len Holt. In the affidavit, Mr. Holt stated that he had visted the federal courthouse at Foley Square on more than a dozen occasions since 1960 and that, based on discussions with former jurors, the deputy clerk in charge of the juries "and information supplied by political figures and the United States census bureau," it was his opinion that Negroes, Puerto Ricans, and blue collar workers were "grossly unrepresented on the federal jury panels, so that these groups constitute less than 2.5% of the juries." This motion was also denied without a hearing.

On appeal, appellants do not attack the formal method of selecting grand jury members employed in the United States District Court for the Southern District of New York, i.e., the use of voter registration lists as the primary source of names of jurors, for they concede that it has been repeatedly upheld as constitutional on the ground that it does not discriminate against any identifiable racial, social or economic group. E.g., United States v. Agueci, 310 F.2d 817, 833-834, 99 A.L.R.2d 478 (2d Cir. 1962), cert. denied 372 U.S. 959, 83 S. Ct. 1013, 10 L. Ed. 2d 11 (1963); United States v. Van Allen, 208 F. Supp. 331, 335-336 (S.D.N.Y.1962); United States v. Greenberg, 200 F. Supp. 382 (S.D.N.Y.1961). Rather, they argue that the district court abused its discretion in denying them an opportunity to present evidence at a hearing in support of their claims of discrimination, on the grounds that Holt's affidavit was sufficient to warrant a hearing on the question of systematic exclusion (intentional exclusion is nowhere mentioned in the affidavit) and that the question of intentional exclusion is one of first impression. It is clear, however, that the district court properly denied the motions without a hearing. Len Holt's conclusory allegation of systematic exclusion based on alleged discussions with unnamed persons and information supplied by unnamed political figures certainly did not require the district court to undertake a new and time-consuming investigation of this oft-reviewed subject.*fn3

"The principles of stare decisis are as applicable to this branch of the law as to any other." United States v. Kelly, 349 F.2d 720, 778 (2d Cir. 1965). Moreover, the unsupported assertion of intentional exclusion failed to raise any factual issue which required an examination at a hearing.

(B) Petit Jury Selection : On May 18, 1965, the appellants made a motion to dismiss the petit jury array on the ground that the panel of ninety prospective jurors contained only one Negro. The motion was denied without a hearing. Although appellants recognize that the burden of proving either systematic or intentional exclusion of Negroes from the panel rests on them, they argue that by showing a disparity of 89 to 1 they made out a prima facie case of discrimination which shifted to the Government the burden of coming forward with evidence to justify the make-up of the petitjury array. In United States v. Flynn, 216 F.2d 354 (2d Cir. 1954), however, this court considered and rejected the argument that a gross disproportion of whites to Negroes, even over a substantial period, established a prima facie case of discrimination where, as here, the formal method of selecting the jurors is free from constitutional objection.*fn4 Id. at 384-385. Compare Smith v. Breazeale, 245 F. Supp. 978 (N.D.Miss.1965).

(C) The Indictment : Collier assigns as error the denial of a motion to quash the indictment made on May 14, 1965, the last court day before trial began. It is alleged that the indictment was defective in that the portion charging offenses under 18 U.S.C. § 545 stated that appellants had aided the transportation of explosives which they knew had been imported into the United States "contrary to law" but failed to specify by number the particular provisions of law to which it referred. After charging the appellants with a violation of Section 545, however, the indictment went on to say that the importation was contrary to law in that the explosives were "not unladen in the presence of and inspected by a customs officer at the first port of entry at which such merchandise arrived in the United States, and in that the required declaration of such [materials] * * * was not made, and in that the prescribed duties on such explosives were not paid." Clearly, the indictment advised the appellants of the essential elements of the offenses with which they were charged and stated facts showing the illegal aspects of the importation. See F.R.Crim.P. 7(c). The explanation of the charge in the indictment makes clear that the claim of insufficiency was "made in a mood of technicalism appropriate only to an era now fortunately past * * *," United States v. Jones, 162 F.2d 72, 73 (2d Cir. 1947) (Frank, J.), and must be rejected. See Huff v. United States, 273 F.2d 56 (5th Cir. 1959); Babb v. United States, 218 F.2d 538 (5th Cir. 1955); cf. Keck v. United States, 172 U.S. 434, 19 S. Ct. 254, 43 L. Ed. 505 (1898). Moreover, Collier has not demonstrated any prejudice as a result of the omission of specific citations, nor could he, for the Government ...

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