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January 12, 1999


The opinion of the court was delivered by: Haight, Senior District Judge.


Mutulu Shakur and Marilyn Jean Buck petition this Court, pursuant to 28 U.S.C. § 2255, for a writ of habeas corpus setting aside their prior conviction, and under Rule 33, Fed.R.Crim.P., for a new trial. Petitioners couple these demands with a request for an evidentiary hearing. The government resists Shakur's and Buck's petitions in their entirety and asks that they be dismissed without an evidentiary hearing.


Procedural History of the Case

In separate indictments returned by grand juries of this District, Shakur and Buck each were charged with conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), participation in a racketeering enterprise, bank robbery, armed bank robbery, and bank robbery murder, in violation of 18 U.S.C. § 1961, 1962(d), 1962(c), 2113(a), 2113(d), 2113(e), and 2. The indictments were consolidated for trial.

On May 11, 1988, after a six-month trial, the jury convicted Shakur and Buck on all charges. Following unsuccessful post-trial motions, on August 2, 1988 this Court imposed prison sentences on both defendants. Shakur and Buck appealed from their convictions. The Second Circuit affirmed. 888 F.2d 234 (2d Cir. 1989). The Supreme Court denied certiorari. 493 U.S. 1087, 110 S.Ct. 1152, 107 L.Ed.2d 1056 (1990).

On April 23, 1997, Shakur filed his present petition for habeas relief, under docket number 97 Civ. 2908. Buck filed her petition on May 5, 1997, under docket number 97 Civ. 3247. The petitions are for the most part based on the same grounds. This Opinion resolves both of them.

Timeliness of the Petitions

Before considering the merits of these petitions, the Court raised sua sponte their timeliness, in light of the statute of limitations contained in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), effective April 24, 1996. The parties were directed to brief the issue, with particular reference to Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997).

Counsel for petitioners contended that the petitions were not time barred by the AEDPA. The government contended that they were. However, the government conceded during oral argument on June 26, 1998, that the Second Circuit's subsequent decision in Mickens v. United States, 148 F.3d 145 (2d Cir. 1998), resolved the timeliness issue under the AEDPA in petitioners' favor. Accordingly, I turn to the grounds upon which petitioners assert a right to habeas corpus relief.*fn1

The Grounds for the Petitions

Shakur's petition, filed first, sets forth the asserted grounds for relief in detail. Buck's petition, with one exception, essentially echoes those grounds.

The Shakur petition originally asserted four grounds: (1) the government's failure to disclose to defendant evidence favorable to the defendant, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny; (2) the government's knowing use of perjured trial testimony to obtain defendant's conviction; (3) the government's deprivation of defendant's constitutional right to confront the principal witness against him; and (4) the obtaining of defendant's conviction "by use of evidence which was based upon unscientific, unreliable and improper examination, testing and conclusions at the Federal Bureau of Investigation (`FBI') Laboratory."

Buck's petition adopts these grounds, and adds the claim that the government's principal witness gave perjured testimony to the grand jury.

Shakur's fourth claim, challenging the quality of the scientific work performed by the FBI laboratory, has not been further pursued. That claim was based on an April 1997 report by the FBI Inspector General that was critical of the analyses performed by certain specialized sections of the agency's laboratory. At trial, an FBI laboratory employee gave fingerprint testimony with respect to Shakur. The government points out in its answering papers that the performance of the fingerprint section was not implicated by or criticized in the Inspector General's report. Shakur's briefs and affidavits say no more on the subject. The briefs for Buck are equally silent with respect to the FBI laboratory. I regard the claim as having been abandoned by both petitioners.

As will be seen, the petitioners' remaining claims all arise out of two written statements furnished to counsel for Shakur by an individual named Claude Strickland. I will consider the Strickland statements in detail. First, however, it will be necessary to place them within the context of the trial evidence elicited by the government and the defendants-petitioners.

The Case for the Government

The government's trial theory, which it proved to the jury's satisfaction, is summarized by the Second Circuit, 888 F.2d at 236:

  Shakur and Buck were participants in a group known
  as the "family", organized in mid-1970s to further
  its conception of the Black struggle in America.
  Although the "family's" goals were largely
  political, their means of attaining those goals
  were violently criminal. From December 1976 to
  October 1981, the "family" committed a succession
  of robberies and attempted robberies of armored
  trucks in the Northeast. Shakur was one of the
  leaders of a small circle of men who planned an
  executed the robberies, while Buck was a member of
  the so-called "secondary team", a group consisting
  mostly of women who assisted in the robberies by
  driving get-away cars, planning escape routes, and
  renting "safe houses". The "family's" final and
  most notorious crime, the "Brinks robbery" of
  October 20, 1981, resulted in the shooting deaths
  of a Brinks guard and two officers in Nanuet and
  Nyack, New York.

That summary may usefully be expanded by giving the dates of the several acts of violence charged against Shakur and Buck in the separate indictments against them.

The pattern of racketeering activity charged against Shakur included: the attempted armed robbery of an armored truck in Pittsburgh, Pennsylvania, on December 6, 1976; the kidnapping of two prison employees in the course of breaking inmate Joanne Chesimard, a/k/a/ "Cleo," a/k/a "Assata Shakur," out of the Clinton, New Jersey Correctional Facility on November 2, 1979; the armed robbery of approximately $521,000 from an armored truck in Inwood, New York, on April 22, 1980; three attempted armed robberies of an armored truck in Danbury, Connecticut, the last of which occurred on March 23, 1981; the robbery of approximately $292,000 from an armored truck in the Bronx, New York, on June 2, 1981, and the murder of an armored truck driver during the course of that armed robbery; three attempted armed robberies of an armored truck at the Chemical Bank in Nanuet, New York, from approximately the summer of 1980 through the spring of 1981; the armed robbery of approximately $1.6 million from an armored truck and the murder of an armored truck driver at a shopping mall in Nanuet, New York, on October 20, 1981, and the murders of two police officers during the course of the ensuing shoot-out with police in Nyack, New York, on the same day.

The pattern of racketeering activity charged against Buck included: the kidnapping of two prison employees in the course of the Chesimard prison break-out on November 2, 1979; the armed robbery of the armored truck in Inwood, New York, on April 22, 1981; the armed robbery of the armored truck in the Bronx, New York, and the murder of the armored truck driver, both occurring on June 2, 1981; and the armed robbery of an armored truck and the murder of the armored truck driver in Nanuet, New York, and the later murders of two police officers during the shoot-out in Nyack, New York, all occurring on October 20, 1981.

The principal fact witness for the government was Tyrone Rison. Rison, who had entered into a cooperation agreement with the government, testified that he was a member of the "family" and participated in most of the crimes charged in the indictments. The exceptions were the first of these, the December 6, 1976 attempted bank robbery in Pittsburgh (Rison had not yet joined the group), and the last, the Nanuet/Nyack episode (Rison having declined to participate in it). Rison gave evidence describing Shakur and Buck (who, he testified, joined the group in 1978) as participants in a number of crimes charged in the indictments.

The Case for Shakur

Shakur's defense had at its core the proposition that while his political goals were to further the fortunes of African-Americans, his means were peaceful and law-abiding, rather than violent and criminal. While Shakur did not testify in his defense, he called 26 witnesses, the majority of whom testified about Shakur's public, political, and non-violent activities, extending over a number of years, and the concerns about governmental persecution that Shakur harbored as a result. In addition to calling fact and expert witnesses to challenge certain aspects of the government's proof against Shakur, his attorneys vigorously attacked the credibility of Rison.

The Case for Buck

In a similar vein, Buck called witnesses who sought to portray her as a political activist, most recently concerned with what she perceived as the African-American liberation struggle, but not a participant in violent crimes in aid of that struggle. Fact and expert witnesses were also called in an effort to meet some of the government's proof with respect to particular incidents. Buck's counsel also assailed Rison's credibility. Buck did not take the stand.

The Strickland Declarations

Claude Strickland gave two written declarations, made under penalty of perjury, to counsel for Shakur in connection with the present petition. Counsel for Shakur say that they used the New York Freedom of Information Law, an Article 78 proceeding, and private investigators, who eventually led counsel to Strickland in January 1997. Affidavit of Michael W. Warner, Esq., co-counsel for Shakur, verified March 11, 1998, at ¶¶ 2-4. Strickland's first declaration is dated April 18, 1997 and was submitted with Shakur's initial papers. His second declaration is dated December 16, 1997, and was included in Shakur's reply to the government's answering papers. I shall refer to these two documents as "CS1" and "CS2" respectively.

Strickland says that he is a retired police officer, having served on the New York City Police Department ("NYPD") for 25 years, and in the NYPD's Intelligence Division during the period covered by his statements. CS1, ¶ 1. Between 1967 and 1979, Strickland was working undercover, joining groups and submitting written reports to the Intelligence Division on the activities of those groups and its members.

In 1967, Strickland was a member of the Brooklyn Congress of Racial Equality ("CORE"). In 1968, he joined an organization called the Republic of New Afrika [sic] ("RNA"),*fn2 where he met Mutulu Shakur and Tyrone Rison. CS1, ¶ 2. While working undercover with a number of organizations, Strickland "was known on the street by the name Ky Farin or Claud Farin. A number of the people who were involved in the RNA and other Black militant organizations knew me as Claud." CS2, ¶ 6.

Rison and Strickland served together on "Security" for the RNA during the course of many public events, both carrying firearms. Strickland says that Rison appeared to him "to be anxious to do more militant action," and "would talk about violence," but Shakur "tried to calm him down and was concerned that the people involved in security not get involved with anything else." CS1, ¶ 3. RNA Security "was a defensive group and certainly not a military force," involved in providing protection against any disturbances at RNA events. CS1, ¶ 4. This security force, called "the Black Legion" of the RNA, "was not involved in organizing any violent or criminal activities." On the contrary, Strickland concluded from his participation and observation that "the Black Legion was involved in trying to prevent any violence." CS2, ¶ 5.

During his undercover activities, Strickland knew Mutulu Shakur by his given name, Jeral Williams, as well as by his African name. During the early years of his undercover work Strickland often referred to Shakur as "Brother Jeral." CS2, ¶ 9. Expanding upon Strickland's observation of and associations with Shakur, typewritten ¶ 7 of CS1 reads as follows:

  I believe I first met Dr. Shakur in 1968. I first
  saw him at the CORE office in Brooklyn. I also saw
  him at RNA meetings, events and activities. I saw
  him also at the Lincoln Detox Center at Lincoln
  hospital. During this entire period I reported on
  Dr. Shakur — what he was doing, saying and
  participating in. It is my best recollection that I
  never saw him with an automatic or semi-automatic
  rifle. I never heard him participate in a
  discussion that I believed to be a plan to do a
  criminal act and I never saw him do a criminal act.
  What I observed and heard concerning Mutulu Shakur
  showed him to be an active participant in the
  militant part of the Black Nationalist movement but
  not someone engaged in criminal or violent
  behavior. For example, Dr. Shakur and I were both
  at an RNA Convention at the New Bethel Church in
  Detroit, Michigan in 1969 when there was a shoot
  out resulting in the death of one police officer
  and serious injury to another. Dr. Shakur did not
  engage in any of the shooting or violence.

That language is followed by a handwritten notation, initialed by Strickland:

  I was outside of the church when the shooting took
  place and did not observe anyone shooting. I
  cannot say that I never heard him talk about a
  criminal act. It has been so long ago that I don't
  recall. I cannot remember any criminal acts that
  he was involved in or if he had any kind of

¶ 8 of CS1 reads as follows:

In their discussions of Rison the Strickland statements focus upon a rifle. CS1, ¶¶ 5 and 6 read as follows:

  5. Mr. Rison had a rifle with a magazine. He
  showed us how to use it. He told me that he had
  got it off the base at Fort Bragg. He said that
  was when he was in Wilmington, N.C. The only
  person I ever saw with this weapon was Mr. Rison.
  I never saw Dr. Shakur with this weapon.
  6. I reported about Mr. Rison and the automatic
  weapon to the Intelligence Division. I also
  reported that he said he had gotten the weapon
  from Fort Bragg.

Dealing further with that subject, Strickland says in CS2, ¶ 3:

  When Mr. Rison told me that he had gotten the
  rifle off the base at Fort Bragg he did not say
  that he had gotten it from anyone else who had
  taken it from the base at Fort Bragg. In the way
  that Mr. Rison spoke I understood him to say that
  it was he who took the rifle off the base at Fort
  Bragg and that he had actually stolen it. He may
  not have used the word "steal", but because of
  what he did say and his not describing anyone else
  involved in his getting the rifle I understood
  that what he was saying was that he had actually
  stolen the rifle which was at Fort Bragg.

Strickland estimates that during his undercover work, he furnished the Intelligence Division with about 500 typewritten reports, concerning the RNA, Shakur, Rison, and other individuals. He further estimates "200 or more mentioned Mutulu Shakur's name and 200 or more mentioned Tyron Rison's name." CS1, ¶ 9. With respect to these reports, and the question of Rison and the rifle, Strickland says in CS1, ¶ 10:

  There is no doubt that from the reports I handed
  in, the Intelligence Division knew of Mutulu
  Shakur from 1968 forward. Those reports associated
  him with the Black Nationalist movement in general
  and the RNA and militant Black activists, in
  particular. There is also no doubt that from my
  reports the Intelligence Division knew that Tyron
  Rison had gotten the automatic weapon from the
  base at Fort Bragg, that he was the only one who
  had this weapon and that I never saw Dr. Shakur
  with that weapon.

Strickland concludes CS1 by saying at ¶ 11:

  Some time prior to the federal trial of Dr. Shakur
  one of my chiefs at the Intelligence Division
  asked me what I knew about Dr. Shakur. They wanted
  me to write notes about Dr. Shakur — everything I
  knew, but not put my name on it. I refused to write
  notes without putting my name on them. I believe
  this information was asked of me for the Federal

Expanding on that subject in CS2, ¶ 4, Strickland reasons that the request from "someone at the Intelligence Division" for his notes about Shakur was made after the Nyack/Nanuet incident, "and the trial of Dr. Shakur was going to occur."*fn3


Shakur and Buck petition to vacate their convictions and for a new trial on constitutional grounds and pursuant to Rule 33, Fed. R.Crim.P. They contend that the substance of Strickland's declarations entitle them to habeas relief for two reasons.

First, petitioners argue that the government failed to disclose to them prior to trial the identity of Strickland, the nature of his undercover police activities, and his reports to the NYPD generated by those activities. Petitioners regard this non-disclosure as violative of Brady.

Second, petitioners argue that the Strickland declarations show that at trial the government made knowing use of perjured testimony by Rison.

I will consider those contentions in order.

A. Brady

1. General Principles

"In order to establish a Brady violation, a defendant must show, inter alia, (1) that the government failed to disclose favorable evidence, and (2) that the evidence it suppressed was material." United States v. Payne, 63 F.3d 1200, 1208 (2d Cir. 1995), cert. denied, 516 U.S. 1165, 116 S.Ct. 1056, 134 L.Ed.2d 201 (1996) (internal quotation marks and citations omitted). As appears from the Second Circuit's discussion at 63 F.3d at 1208-11, the second element articulated in Payne contains has two separate components: suppression of evidence by the government, and the materiality of the evidence suppressed.

Furthermore, I think it evident that nondisclosed evidence must have been admissible at trial if known to the defense. Evidence cannot be material, as that element is construed, if it was not admissible, and so could not have come before the jury.

Before further considering those components, one should note that evidence "favorable" to the defendant is defined broadly. "The government's Brady obligation to disclose material evidence favorable to a criminal defendant applies not only to exculpatory evidence, but also to evidence that could be used to impeach government witnesses." United States v. Orena, 145 F.3d 551, 557 (2d Cir. 1998) (footnote and citations omitted). The government has a duty to disclose favorable evidence, "even if no specific request is made by the defense." Payne, 63 F.3d at 1208 (citations omitted).

Evidence favorable to the defendant must have been known to the government to implicate Brady, since "[t]he Brady obligation extends only to material evidence that is known to the prosecutor." United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998) (citation omitted). See also Payne, 63 F.3d at 1208 (the government has "an affirmative duty to disclose favorable evidence known to it") (emphasis added). Absent prosecutorial knowledge, by definition there can have been no governmental suppression of evidence. But the boundaries of the government's knowledge — actual or constructive, real or presumed, direct or imputed — are not drawn with precision. It is well settled that those boundaries extend beyond the individual prosecutor or prosecutors who obtain the indictment and conduct the trial. "[T]he individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf in the case, including the police." Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). "The individual prosecutor is presumed to have knowledge of all information gathered in connection with the government's investigation." Payne, 63 F.3d at 1208 (citing Kyles v. Whitley). But the court of appeals cautioned in Avellino, 136 F.3d at 255:

  Nonetheless, knowledge on the part of persons
  employed by a different office of the government
  does not in all instances warrant the imputation
  of knowledge to the prosecutor, for the imposition
  of an unlimited duty on a prosecutor to inquire of
  other offices not working with the prosecutor's
  office on the case in question would
  inappropriately require us to adopt a monolithic
  view of government that would condemn the
  prosecution of criminal cases to a state of

(internal quotation marks and citations omitted).

In United States v. Zagari, 111 F.3d 307, 320 n. 13 (2d Cir. 1997), the Second Circuit observed that "[t]he extent to which knowledge may be imputed from one federal agency to another for Brady purposes is as yet unclear;" it avoided the issue in that case, stating that "it is clear to us that Brady was not violated because of the lack of materiality and the defendant's ability to access" the information in question "with due diligence." Id.

Evidence favorable to the defendant but not disclosed to him is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different," Kyles v. Whitley, 514 U.S. at 433, 115 S.Ct. 1555 (internal quotation marks and citations omitted). In other words, evidence is material if it "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Id. at 435, 115 S.Ct. 1555. See also Orena, 145 F.3d at 557; Payne, 63 F.3d at 1209.

2. Petitioners' Brady Contentions

Petitioners perceive in the Strickland declarations violations of both prongs of Brady: exculpation and impeachment.

Petitioners characterize those declarations as exculpatory of Shakur because Strickland's descriptions of Shakur's activities are consistent with Shakur's theory of the case, namely, that he was an activist but not a criminal or violent one. Arguably that aspect of the Strickland declarations also exculpates Buck, who the government contended was a second-tier member of the organization that Shakur headed.

Petitioners also view the Strickland declarations as impeaching Rison on the subject of how Rison obtained a rifle. As noted, Strickland understood Rison to be saying that he, Rison, had stolen an automatic rifle and magazine from the Army base at Fort Bragg. To place this Brady claim in context, it is necessary to recall that during Rison's cross-examination at trial by Chokwe Lumumba, Esq., co-trial counsel for Shakur, Rison gave this testimony:

  Q. And what you did is you snuck into some place
  and stole an M-16, didn't you?

A. No, sir.

  Q. You remember talking to the Reverend Ben
  Chavis, don't you?

A. Yes, sir.

  Q. And in his presence admitting that you had
  stolen an M-16, right?

A. No, sir.

  Q. So if you don't remember that, then you
  wouldn't remember them putting you out of the
  defense ministry because of that, would you?

MS. MARTIN: Objection.

THE COURT: Sustained as to form. It's argument.

  Q. You don't remember being put out because of
  A. The event never happened that you just

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