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UNITED STATES v. MUTULU SHAKUR

March 28, 1983

UNITED STATES OF AMERICA
v.
MUTULU SHAKUR, a/k/a "Doc," a/k/a "Jeral Wayne Williams," SEKOU ODINGA, a/k/a "Nathaniel Burns," a/k/a "Mgabasi," a/k/a "Mugubasi," a/k/a "Eddie Holmes," a/k/a "Lou," CECIL FERGUSON, a/k/a "Mo," a/k/a "Chui," EDWARD LAWRENCE JOSEPH, a/k/a "Edward Lawrence," a/k/a "Jamal," a/k/a "Tony," a/k/a "J.R.," WILLIAM JOHNSON, a/k/a "Bilal Sunni-Ali," a/k/a "Spirit," SILVIA BARALDINI, a/k/a "Louise," SUSAN ROSENBERG, a/k/a "Elizabeth," CHERI DALTON, a/k/a "Nahanda," ILIANA ROBINSON, a/k/a "Naomi," NILSE COBEO, a/k/a "Nilse Lawrence," a/k/a "Ginger," a/k/a "Gigi," a/k/a "Giovanni Correa," and ALAN BERKMAN, Defendants



The opinion of the court was delivered by: DUFFY

MEMORANDUM & ORDER

 KEVIN THOMAS DUFFY, D.J.:

 Defendants Ferguson and Joseph move to dismiss the indictment for prosecutorial abuse of the grand jury. This motion is based on four allegations of misconduct by the United States Attorney's Office: (1) withholding from the grand jury the mental and physical status of government informants Yvonne Thomas and Samuel Brown; (2) offering hearsay testimony of Brown and Thomas to the grand jury when they were cognizant that neither would testify before the grand jury; (3) using grand jury subpoenas to freeze witnesses' testimony for trial; and (4) allowing United States Attorney John Martin and Assistant United States Attorney ("AUSA") Pomerantz to bolster the prosecution's own credibility and that of the Federal Bureau of Investigation ("FBI") agents while at the same time degrading Brown's lawyers. This motion is joined in by all the defendants.

 The main purpose of a grand jury investigation is to uncover probable cause that a crime has been committed and probable cause that certain defendants committed the crime. It is the duty of the prosecution to present information as to these inquiries to the grand jury. It is the extraordinary situation where much more will be required of either the prosecutor or the grand jury before an indictment can be returned.

 The defendants here claim that this case presents that extraordinary situation and that the grand jury has failed in its duty to protect the innocent public from the overzealous prosecutor. United States v. Ciambrone, 601 F.2d 616, 622 (2d Cir. 1979). This claim is totally without merit.

 It must be noted first, that in the performance of their duties, neither the grand jury nor the prosecutor presenting the case is bound strictly by the formal rules of evidence. Costello v. United States, 350 U.S. 359, 362, 100 L. Ed. 397, 76 S. Ct. 406 (1956). This flexibility is not possible when a jury is sitting in a criminal trial determining whether guilt has been proven beyond a reasonable doubt. The grand jury, on the other hand, has the limited function of determining if probable cause exists to support an indictment. A grand jury is not a forum for a mini-trial of the issues. Courts have repeatedly rejected defense counsels' attempts to convert the grand jury proceedings into a "preliminary trial" and to bind the prosecutor by the rules of evidence. Id.; United States v. Ciambrone, 601 F.2d at 622.

 Concededly, the informality of the grand jury proceedings does not erode all government obligations. It must still present its case fairly with appropriate concern for the interests of justice. The government, although not obligated to divulge exculpatory evidence pursuant to Brady v. Maryland and the Jencks Act, must still present to the grand jury known "substantial evidence negating guilt . . . where it might reasonably be expected to lead the jury not to indict." United States v. Ciambrone, 601 F.2d at 623. This does not, however, require the prosecutor to outline all available defenses or to delve into all evidence to uncover potentially exculpatory information. Id.; United States v. Sun Myung Moon, 532 F. Supp. 1360 (S.D.N.Y. 1982).

 Failure of the government to comply with its grand jury obligations may present the extraordinary circumstance that triggers exercise of the court's supervisory powers to dismiss the indictment. United States v. Sun Myung Moon, 532 F. Supp. 1360, 1369-70 (S.D.N.Y. 1982). See generally United States v. Artuso, 618 F.2d 192, 196-97 (2d Cir.), cert. denied, 449 U.S. 861, 66 L. Ed. 2d 77, 101 S. Ct. 164 (1980).

 The defendants' allegations must be evaluated against this legal backdrop.

 1. Samuel Brown

 a. Pomerantz testimony

 Samuel Brown, a defendant in the collateral Rockland County indictment, first contacted the federal government with his desire to cooperate in November 1981, shortly after the October 20, 1981 incident. Mr. Brown subsequently met with FBI Agents Robert Cordier and Kenneth Maxwell ten times over a four month period. *fn1"

 On the morning of March 31, 1982, less than twenty-four hours after Brown's cordial meeting with Agent Maxwell, Agent Cordier, AUSA's Parver and Pomerantz, Brown refused to speak with these government officials or to cooperate further. Brown sent letters to AUSA Parver through the Marshals to this effect. AUSA Pomerantz went before the grand jury on this date and related Brown's apparent change of heart. During his introduction of Pomerantz to the grand jury, the United States Attorney, John Martin, elicited Pomerantz's past employment as law clerk to District Court Judge Edward Weinfeld and Associate Justice Potter Stewart. March 31, 1982 Grand Jury Testimony of Mark Pomerantz at 2. Pomerantz also told the grand jury of his present position as Chief Appellate Attorney in the United States Attorney's Office, a job that entails staying abreast with the changing state of the law. Id. at 3. Pomerantz then read to the grand jury the letters sent by Brown to AUSA Parver stating that Maxwell ...


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