The opinion of the court was delivered by: Haight, Senior District Judge.
MEMORANDUM OPINION AND ORDER
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
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
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
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
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
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.
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.
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
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"
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
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
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,
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.
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.
"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
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
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
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?
Q. You remember talking to the Reverend Ben
Chavis, don't you?
Q. And in his presence admitting that you had
stolen an M-16, right?
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?
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