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UNITED STATES v. MUTULU SHAKUR

September 6, 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.," BILAL SUNNI-ALI, a/k/a "William Johnson," a/k/a "Spirit," SYLVIA 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.:

Mr. Chokwe Lumumba, Esq., co-counsel for defendant Bilal Sunni-Ali, was held in contempt on two occasions during the trial of the above case. I hereby set forth in this memorandum and order the events justifying the contempt citations and I further certify, pursuant to Fed. R. Crim. P. 42(a), that these events took place in my presence during the trial of United States of America v. Mutulu Shakur, et al., SSS 82 Cr. 312 (KTD). The trial began on April 4, 1983 and the jury reached a verdict on September , 1983.

 Mr. Lumumba, who was co-counsel for Mr. Sunni-Ali along with Ms. Lynne F. Stewart, demonstrated from the start of the trial his conscious desire to obstruct and disrupt the orderly trial of the six defendants on trial. His continuous and unrelenting attacks on the integrity of the court, his ceaseless attempts to bait the court, and his personal vilifications of the trial judge are all amply supported by the specifications and samples set forth below. Moreover, the trial transcript demonstrates that Mr. Lumumba's contumacious behavior was not part and parcel of a vigorous defense of his client but instead was intended to cause significant disruption of the proceedings.

 I appreciate and abide by the principle that defense attorneys "be given great latitude in the area of vigorous advocacy." In re Dellinger, 461 F.2d 389, 398 (7th Cir. 1972). I further recognize the need to exercise judicial restraint and tolerance of statements uttered in the heat of trial passion. The behavior of Mr. Lumumba, however, crossed the line between "hesitating, begrudging obedience and open defiance," id. 461 F.2d at 399, and demands punishment as permitted in 18 U.S.C. § 401.

 The Second Circuit approves of invocation of the summary contempt statute when "the contemnor's conduct . . . rises to the level of an obstruction of and an imminent threat to the administration of justice, and it must be accompanied by the intention on the part of the contemnor to obstruct, disrupt or interfere with the administration of justice." In re Williams, 509 F.2d 949, 960 (2d Cir. 1975). Mr. Lumumba's tone, attitude, and consistent beratement of the court rose to this level and required immediate action to prevent further disruption of the trial.

 Mr. Lumumba was held in summary contempt on two occasions. The first contempt specification was issued on April 13, 1983 during jury selection. The following excerpt from the trial transcript demonstrates the ample basis for the contempt citation.

 I.

 THE COURT: Well, do you think it would cause you any bias or prejudice one way or the other or sympathy either for or against the government or for or against the defendants on trial?

 JUROR No. 9: It is the type of thing that would probably be in the back of one's mind and, therefore, effect one's concentration, I would imagine, and possibly eventually your impartiality. I don't know that it would be something direct.

 THE COURT: But you think it could affect your impartiality?

 JUROR No. 9: It is conceivable.

 THE COURT: You are excused.

 MR. BERMAN: Before you let her go, could we ask some questions if she discussed this with other jurors?

 THE COURT: No. You are excused.

 MR. BERMAN: Given she's excused --

 THE COURT: Sit down, please.

 MR. BERMAN: Could we keep her in the other room?

 THE COURT: No. You are excused.

 MR. LUMUMBA: What are you trying to hide? It is clear she's been misinformed and other people were misinformed. This is an obscene display of the court. I think it is ridiculous.

 THE COURT: Call the next juror.

 MR. BERMAN: All I ask is that we keep her available so we can ask her other questions.

 THE CLERK: Seat number nine is number 21.

 MR. BERMAN: Judge, can we at least try to explain or ask questions that ought to be asked of her whether she discussed this with other jurors?

 MR. LUMUMBA: We would move that the other jurors themselves be brought in.

 THE COURT: Bring in cardholder number 21.

 MR. BERMAN: I don't see the point in making believe this didn't happen. You have a juror here who said she's been moved by this article --

 THE COURT: Mr. Berman, if you want to make a record --

 MR. BERMAN: It is not a matter of making a record. I am trying to persuade you. We give it to you in writing and it doesn't get dealt with. You never bother to say --

 THE COURT: It does get read.

 MR. BERMAN: When you give us an order to put it in writing it winds up in the trash heap. You will decide before we give it anyway. It is not as if you can't rule on it now or "I'll take it later." Out of respect for this court I'm putting it in writing. I realize I have been a fool. What's the point of putting it in writing if you rule on it in advance.

 THE COURT: I do give it consideration.

 MR. BERMAN: There is a serious problem with the article --

 THE COURT: Mr. Berman, we're getting the juror in here.

 MR. BERMAN: Let the juror stay out for a second.

 THE COURT: As soon as the juror shows up I'll be back.

 MR. LUMUMBA: Judge, why can't you answer the question we posed to you as relates to the situation?

 (Recess)

 (Open Court)

 (Juror Number nine entered the courtroom).

 MR. LUMUMBA: Judge, before you continue --

 (Pause)

 THE COURT: Sir, are you all right, cardholder number 21? I understand you just tripped. Are you all right?

 JUROR No. 9: Yes, I'm fine.

 THE COURT: Could you tell us what county you come from?

 JUROR No. 9: Manhattan.

 MR. LUMUMBA: Excuse me, judge.

 THE COURT: Manhattan?

 JUROR No. 9: Yes.

 MR. LUMUMBA: Judge, we have to deal --

 THE COURT: Mr. Lumumba, this is a court order, Mr. Lumumba, that I am making right now for you to be quiet and sit down.

 MR. LUMUMBA: Well, judge, I'm pointing out --

 THE COURT: If you disobey that order --

 MR. LUMUMBA: Are you trying to put me under an order so you don't have to deal with me?

 THE COURT: Are you going to obey that order?

 MR. LUMUMBA: Are you trying to hide an issue from this juror?

 THE COURT: No. I am issuing an order for you to be quiet and sit down. Are you going to obey it or not?

 MR. LUMUMBA: You won't listen to us when the juror isn't here, perhaps you'll listen now.

 THE COURT: Are you going to obey it or not?

 MR. LUMUMBA: Judge, the question I am asking you --

 THE COURT: Are you going to obey it or not, yes or no?

 MR. LUMUMBA: There is a matter to be heard. You just heard two jurors --

 THE COURT: I am telling you now to sit down and be quiet.

 MR. LUMUMBA: The fact that they are --

 THE COURT: Take the juror out, Mr. Clerk.

 (Juror number nine excused from the courtroom)

 THE COURT: Mr. Marshal --

 MS. TIPOGRAPH: I have to object to the manner in which you are treating co-counsel in this issue.

 THE COURT: I'm sorry.

 MR. SUNNI-ALI: I have to object to the way you are treating my lawyer in this instance and continuously since this incident started.

 THE COURT: Mr. Lumumba is held in criminal contempt.

 Trial Transcript at 927-31.

 II.

 The second contempt specification was issued on June 8, 1983. The following excerpt substantiates this specification:

 (Jury not present)

 MR. LUMUMBA: Okay, can I ask this question as an offer of proof? The jury is not around, Judge. You don't have to worry about the jury finding out how the FBI treated he black liberation movement.

 THE COURT: If that's what we are getting into, it has no place in this trial.

 MR. LUMUMBA: Why has it no place in this trial? You are here prosecuting the black liberation movement. It has nothing to do with the way your government treated us in the past, right? It's insane.

 THE COURT: Tell me what you are attempting to prove.

 BY MR. LUMUMBA: Q. Have you --

 THE COURT: Step town [sic], Mr. Spriggle, and step outside.

 Tell me what you are trying to prove.

 MR. LUMUMBA: Fine. Let him go. Wait until he leaves. I don't want to him to hear it anyway because he will probably lie.

 (Witness left the courtroom)

 MR. LUMUMBA: The thing is that it is my belief that the document which is being entered into evidence, which you accepted into evidence for whatever reason, it doesn't talk about Brinks robberies or anything else, is a document which is totally consistent with documents which have pervaded the black liberation struggle since the time that the FBI has started killing different people in the movement, since the time that there was a manifest need for security, since the time that the black liberation movement had been paroling in communities trying to stop crime and therefore have had necessity for rules of this nature.

 That being the case, I would like to point out through the specific document which you have suggested cannot come into evidence, which is almost identical in parts to this document, and through his knowledge of the documents which he may have examined, having been a person who has been in the FBI for 26 years during the period of time in which they have examined the whole files, the total files of various different movements, he can tell us that the principles in this document are not inconsistent with many of those other principles which come from groups which clearly had nothing to do with robbing Brinks trucks and were totally overground political formations which were functioning in a way which was legal even by corrupt laws of the United States.

 So the point that I am trying to make here is this, that if they are allowed to issue a document which has prejudicial impact if not explained, then I have a right to go into it and to explain it through this witness. That's one point.

 Another point is I would like some kind of ruling on why you won't let me do what you let them do and then have the audacity to sit on the bench and claim you are fair.

 THE COURT: Look Mr. Lumumba, you have been held in contempt more than once and you are held in contempt again.

 MR. LUMUMBA: Really, I didn't help know that.

 THE COURT: It doesn't much matter at this point.

 MR. LUMUMBA: That's what I told you at this point.

 THE COURT: It will at the end of this trial, but that's one of those things.

  MS. TIPOGRAPH: I object to threats in this case.

  MR. SUNNI-ALI: He asked a plain question and you come up threatening.

  MR. LUMUMBA: I will tell you I am intimidated and I am going to quit, and that being the case my man doesn't have any representation.

  I can't function any more. You have intimidated me. What am I doing going to do? My man doesn't have representation.

  I ask for a mistrial, Judge. I am scared. I am serious. I don't know if I can function any more properly. I am going to leave you.

  THE COURT: The motion is denied. You don't have to leave, Mr. Lumumba, sit down. You have a client to represent.

  MR. LUMUMBA: I can't do it.

  THE COURT: Well, sit there anyway and try.

  Okay, you are ready to start on your cross-examination, Mr. Mogulescu? Mr. Lumumba is finished.

  MR. LUMUMBA: I am not finished with mine.

  THE COURT: Yes, you are. You are finished.

  MR. SUNNI-ALI: Run boy, run.

  THE COURT: From what?

  MR. LUMUMBA: Have you ruled?

  MR. SUNNI-ALI: On the truth.

  MR. LUMUMBA: On the motion.

  THE COURT: Yes, your motion for a mistrial is denied. Your offer of proof in connection with this particular witness is also denied.

  MR. LUMUMBA: Why?

  THE COURT: I don't have to explain. It's denied.

  Trial Transcript at 4822-26.

  These contempt citations justify the invocation of the discretionary power vested in me by 18 U.S.C. § 401 to punish Mr. Lumumba by imposition of a fine or a term of imprisonment. Mr. Lumumba's conduct throughout the trial, in addition to the two specifications set forth above, further mandates punishment. The following excerpts from the trial transcript are merely a sample of his antics and clearly document his contumacious behavior:

  MR. LUMUMBA: I have an application that I would like to make on behalf of Mr. Johnson. Mr. Ali, excuse me, Judge.

  The situation that we would like to do at this time is to challenge the entire jury panel.

  THE COURT: That is denied. Sit down and write it out. Make it part of the record, Mr. Lumumba.

  MR. LUMUMBA: Excuse me.

  THE COURT: Mr. Lumumba, we will make it part of the ...


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