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May 10, 2000


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


On August 30, 1985, the government sought and obtained leave to file a nolle prosequi dismissing the captioned indictment in its entirety against defendant Susan Rosenberg. Nearly fifteen years later and in large part, if not solely, on account of her alleged involvement in the crimes included in the dismissed indictment, Rosenberg was denied release on parole from a 58-year sentence she is currently serving after being convicted in the District of New Jersey on unrelated charges. Perceiving this as a miscarriage of justice, Rosenberg now moves this Court to reconsider its grant of nolle prosequi and to grant appropriate relief.


A. The Brinks Indictment In This District

In 1982, Rosenberg was indicted in this District, along with numerous others, in United States v. Shakur, 82 Cr. 312, also known as the "Brinks case." The indictment alleged a conspiracy to commit several "fund-raisers" or armed robberies to raise money for the revolutionary activities of the conspiracy members (also known as "the Family"). Among the crimes committed by the Family were armed robberies, kidnapings, the jail break of Joanne Chesimard, and the murders of two police officers and two Brinks armored truck guards.*fn1 Rosenberg's alleged role was as a member of the Family's secondary team whose job was to arrange for getaway cars, safe houses, and reconnaissance.

The first Brinks trial in this Court was held in 1983, before Judge Duffy and a jury. Six of the eleven defendants named in the indictment were tried: two of the defendants were convicted on RICO counts, two were found guilty as accessories after the fact, and two were acquitted on all charges. Although maintaining her innocence of any and all of the Brinks crimes, Rosenberg became a fugitive and was not apprehended until November 29, 1984.

B. The New Jersey Indictment, Conviction and Sentence

Before imposing sentence, Judge Lacey explicitly stated that:

in sentencing I'm giving no consideration to Rosenberg's involvement, if any, in the acts and crimes charged in the Southern District of New York, wherein it's alleged that she participated in various armed robberies and murders, and among other things, the jail breakout of Chesimard. Rosenberg is still to be tried on those charges and I'm being as specific as I can be so that the prosecution and the court having jurisdiction over the matter there will know that my sentence here is not based in the slightest on any involvement that Rosenberg may have had in what is there charged.

(Tab 4, p. 46).*fn3

The government and Rosenberg dispute the meaning of that statement. Rosenberg argues that this is clear evidence that the length of her sentence for her New Jersey crimes was never meant to include or be influenced by her alleged involvement in the Brinks case. On the other hand, the government contends that Judge Lacey merely intended to preclude Rosenberg from making any double jeopardy challenge if and when she was tried in this Court for the Brinks crimes.

The government's interpretation seems more likely, given the fact that Judge Lacey addressed his statement to the "prosecution and the court having jurisdiction over" the Brinks case, rather than to the Parole Commission. The government might even be conservative in its interpretation, since Judge Lacey was possibly seeking to foreclose not only a double jeopardy challenge, but also, lest anyone think that the Brinks crimes had already been considered, the possibility that the New Jersey sentence be used to mitigate any sentence Rosenberg might ultimately receive for the Brinks crimes.

Even if, as Rosenberg contends, Judge Lacey meant this pronouncement as a recommendation to the Parole Commission not to consider Rosenberg's alleged involvement in the Brinks crimes when determining parole eligibility, an unlikely proposition since the judge addressed the Parole Commission directly later in the sentencing and in a separate parole recommendation, (Tab 4, p. 53; Tab 5), the Parole Commission would not be bound by such recommendation. See 28 C.F.R. § 2.19(d) (1999).

Interestingly, regarding the place of incarceration, and referring to Family member Marilyn Buck's escape from prison, Judge Lacey warned, "it will be remembered that Rosenberg's `comrade', Marilyn Buck, was permitted to walk out of Alderson on a legal furlough to visit her attorney, Tipograph. Tipograph and Rosenberg are more than just attorney and client. They have been associates, companions and roommates. I am sure the Bureau of Prisons will make certain that Rosenberg does not profit from the same mistake that was made as to Buck." (Tab 5, pp. 2-3). Marilyn Buck was later convicted in this Court for her involvement in the Brinks crimes. This belies any suggestion that Judge Lacey completely disassociated Rosenberg from the Brinks case or its participants. In any event, this Court considers the statement at sentencing only for its plain meaning, that is, that the 58 year sentence was based entirely on Rosenberg's New Jersey crimes.

Aware that Rosenberg and Blunk would be eligible for parole consideration after only 10 years of imprisonment,*fn4 Judge Lacey was adamant about and explicit in his view that it would be "a terrible mistake if these defendants were to be released from prison after serving only 10 years if their attitude then is as it is now." (Tab 5, p. 2; Tab 4, p. 53). Accounting for the possibility that the Parole Commission would decide at some future date that release was proper, Judge Lacey also emphasized the grave responsibility the Parole Commission would bear for any adverse consequences that might follow. Id.

C. The Nolle Prosequi of the Brinks Indictment Against Rosenberg

In spite of her behavior at and attitude toward the New Jersey trial, Rosenberg contends that she maintained her innocence of the Brinks charges and wished to prove her innocence at the second Brinks trial for which the government was preparing. Rosenberg insisted on being arraigned in this District on those charges.*fn5 On August 26, 1985, while awaiting trial, Rosenberg's attorney, Susan Tipograph, made a motion on behalf of Marilyn Buck, Susan Rosenberg and Alan Berkman to consolidate their cases.*fn6 (Tab 7). Buck was charged in a separate indictment and was also represented by Tipograph. Berkman, who was charged in the same indictment as Rosenberg, consented to the consolidation motion.*fn7

On August 30, 1985, the government moved for leave to file a nolle prosequi against Rosenberg. In its nolle application the government cited as the basis for the nolle "the lengthy sentence imposed by Judge Lacey and his recommendation regarding parole," namely, "that `parole not be granted at the statutory maximum eligibility point of ten years.'" (Tab 8, p. 3). The Court granted the nolle without prejudice. Rosenberg maintains that the dismissal was granted over her objection, and that she was thereby denied the right to go to trial and contest the charges against her. There is no contemporaneous evidence to support this contention. Apparently, Rosenberg did object to the fact that the dismissal was granted without prejudice and moved that the nolle be entered with prejudice. By order dated September 17, 1985, Judge Duffy denied the motion as moot, reasoning that until Rosenberg was reindicted, there would be no case or controversy.*fn8 It is that nolle prosequi that is the subject of the instant motion.

Rosenberg is currently serving her 58 year sentence for her New Jersey crimes, and is incarcerated in the District of Connecticut, at the Federal Correctional Institution in Danbury.

D. Rosenberg's Initial Consideration For Parole: The Parole Commission's Inquiry and the Government's Response

Pursuant to 18 U.S.C. § 4205(a), Rosenberg first became eligible for parole in 1994, after serving ten years of her term of imprisonment.*fn9 In preparation for Rosenberg's first parole hearing, the United States Parole Commission sent a letter dated August 31, 1994 to the United States Attorney for this District. The substantive paragraphs of that letter read as follows:

The above-named Subject is scheduled for a hearing within the next few weeks. Commission Examiners have determined that further information is needed to conduct the hearing in conformity with the Commission procedures. The information needed is described in the following manner:
Please provide details of subject's involvement in the bank robbery behavior(s) which resulted in people being killed. Were the charges prosecuted, if not, please advise the Commission as to why they were not. Did Ms. Rosenberg participate in the crimes, if so please define her role.
It is the Commission's understanding that Ms. Rosenberg and others were charged under docket # SSS82CR312 in the Southern District of New York in an eight count indictment which included armed robbery and murder. Please provide details of her role in the behavior. Also, whether there was evidence which would support the charges.
The Commission would appreciate it if you would take the necessary action(s) to secure the needed information. One copy of your response should be sent to the institution of confinement, the original to this office. Your response should state that it may be disclosed to the Subject, or contain a summarization of non-disclosable information pursuant to 18 U.S.C. § 4208(c).

The government responded in a single-spaced typed letter of just over seven pages, dated November 8, 1994 and signed by Assistant United States Attorney Kerri Martin Bartlett. AUSA Bartlett was one of the two prosecutors presenting the government's case at the trial of Buck and Shakur. The first six pages of her letter answer the questions posed by the Parole Commission: informing that the Brinks case against Rosenberg had been nolled, explaining why, and reviewing in detail the government's perception of the evidence of Rosenberg's complicity in those crimes.

At the bottom of page 7, AUSA Bartlett's letter embarks upon a lengthy answer to a question the Parole Commission did not ask: whether Rosenberg should be paroled. That portion of the letter begins: "Rosenberg's present request for parole, coming as it does only ten years after her incarceration, is frivolous in the Government's view." The long sentences passed upon those Family members who were convicted or pled guilty in federal or state court are reviewed, with the additional comment: "It is ludicrous that Rosenberg would expect more lenient treatment than her secondary team co-racketeers, especially given the severity of her additional New Jersey crimes." The sufferings of the Family's victims are movingly recounted. (See, e.g., page 7 of the letter: "Sergeant O'Grady's widow and his young son Edward Jr., who was still trying to understand the reasons for his father's murder, occupied front row seats at the federal sentencing of Marilyn Buck in 1989.").

AUSA Bartlett's letter concludes with these words:

Thus, even if Susan Rosenberg now professes a change of heart about her pursuit of violence as a means to achieve her political objectives, the wreckage she has left in her wake is too enormous to overlook. Rosenberg deserves to serve a lengthy sentence as punishment for her crimes and as a continued assurance to her victims and their families that our criminal justice system has not forgotten them. Her service of a lengthy prison sentence will also deter others who might arrogantly believe that the furtherance of their political beliefs is justification for violence. Rosenberg's parole request should be denied.

Given that there were no victims of her New Jersey offenses, Bartlett could only have been referring to the Brinks crimes. Rosenberg relies heavily on this letter as the basis for her argument that the government abused the nolle prosequi by, in effect, prosecuting Rosenberg in front of the Parole Commission, where she did not have the benefit of the greater due process protections that attach to a criminal defendant as opposed to a prisoner who is up for parole. Rosenberg was not paroled in 1994.*fn10

E. The Release on Parole of Rosenberg's New Jersey Co-defendant

In March 1997, Rosenberg's coconspirator in the New Jersey crimes, Timothy Blunk, was released on parole. Blunk had been convicted of the same offenses and received the same sentence as Rosenberg. When the Parole Commission considered Rosenberg's application for parole in January 1998, she was denied release, even though the Parole Commission rated Blunk as having a greater potential risk of parole violation than Rosenberg. Most likely accounting for the different results is the fact that it was never alleged that Blunk had been involved in the Brinks crimes.*fn11 This is confirmed by the record of the parole hearing and the Commission's decisions.

F. Federal Parole: The Statutory and Regulatory Scheme

18 U.S.C. § 4206 defines parole determination criteria. It provides, in pertinent part:

(a) If an eligible prisoner has substantially observed the rules of the institution or institutions to which he has been confined, and if the Commission, upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner, determines:
(1) that release would not depreciate the seriousness of his offense or promote disrespect for the law; and
(2) that release would not jeopardize the public welfare;
subject to the provisions of subsections (b) and (c) of this section, and pursuant to guidelines promulgated by the Commission pursuant to section 4203(a)(1), such prisoner shall be released.
(c) The Commission may grant or deny release on parole notwithstanding the guidelines referred to in subsection (a) of this section if it determines there is good cause for so doing: Provided, That the prisoner is furnished written notice stating with particularity the reasons for its determination, including a summary of the information relied upon.

The guidelines referred to are set out in 28 C.F.R. § 2.20 (1999), and provide the Parole Commission with two methods of evaluating or rating an inmate's eligibility for parole. First, offense severity is rated on a scale of 1 to 8, Category Eight being the most severe. Second, a salient factor score, which indicates the potential risk of parole violation and measures offender characteristics, is calculated on a scale of 0 to 10, 10 indicating the lowest risk. The guidelines specify the customary range of time to be served before release for various combinations of the two scores.

A federal prisoner sentenced prior to the effective date of the Sentencing Reform Act and serving a term of more than thirty years is first eligible for parole after serving ten years of such sentence. 18 U.S.C. § 4205(a). "Whenever feasible, the initial parole determination proceeding . . . shall be held not later than thirty days before the date of such eligibility for parole." 18 U.S.C. § 4208(a); but see, 28 C.F.R. § 2.12 (providing that initial hearing be conducted nine months prior to parole eligibility date, "or as soon thereafter as practicable"). To activate the parole determination procedure, a federal prisoner must apply for parole. 28 C.F.R. § 2.11.

Thereafter an initial hearing is conducted at which the Commission shall set a presumptive release date, set an effective date of parole, or, as in the case of Susan Rosenberg, continue the prisoner to a fifteen-year reconsideration hearing.*fn12 28 C.F.R. § 2.12. At the initial hearing, "[t]he examiner shall discuss with the prisoner his offense severity rating and salient factor score . . . his institutional conduct and, in addition, any other matter the examiner may deem relevant. . . .A prisoner may be represented at a hearing by a person of his or her choice." 28 C.F.R. § 2.13. At the conclusion of the hearing, the hearing examiner or examiners make a recommendation regarding parole subject to the Regional Commissioner's approval. 28 C.F.R. § 2.23(d); § 2.24.

"[A] Regional Commissioner may designate certain cases for decision by a majority of the Commission, as original jurisdiction cases. In such instances, he shall forward the case with his vote . . . to the National Commissioners for decision." 28 C.F.R. § 2.17(a). This action is taken in high profile cases, in the case of prisoners who have committed crimes against the security of the Nation, in cases involving large scale conspiracy, continuing criminal enterprise or complex and sophisticated planning, and in cases where the prisoner has been sentenced to a maximum term of 45 years or more. 28 C.F.R. § 2.17(b). A prisoner may then appeal an original jurisdiction decision to the National Appeals Board by making a petition for reconsideration within thirty days of the original jurisdiction decision. 28 C.F.R. § 2.27(a). The decision of the National Appeals Board is final. Id.

G. Rosenberg's Parole Hearings and the Denial of Parole

Rosenberg's initial parole hearing was held on January 15, 1998. Rosenberg was represented by an attorney. At the hearing Rosenberg accepted responsibility for her New Jersey crimes, and stated that she recognized that violence was not a proper means of advancing her political ends. Although she maintained that it was never her intention to harm anyone, she acknowledged that given the arsenal she and Blunk had assembled, her intentions notwithstanding, tremendous harm could have resulted. (Tab 14, p. 4). Rosenberg testified to and submitted numerous letters evidencing her impressive institutional adjustment. As to the Brinks charges, Rosenberg vehemently denied that she had been involved in any way. She also claimed that she had wanted to contest the charges and vindicate her name, but that over her objection, she was denied the opportunity to go to trial. (Tab 14, pp. 10-11). Even though Rosenberg and her attorney were given the chance to respond to the Brinks charges, specifically the information contained in AUSA Bartlett's letter, the hearing examiner noted that "you can't really properly defend it in this forum. I do understand that. You've said all you could to defend. But as far as putting on witnesses and being able to . . . show your innocence, you really can't do it in this forum." (Tab 14, p. 21).

In February, 1998, the original jurisdiction decision affirmed the hearing examiner's recommendation and continued Rosenberg's case for a fifteen-year reconsideration hearing. This decision was appealed pursuant to 28 C.F.R. § 2.27. (Tab 13).

On April 14, 1999, the National Appeals Board (also referred to as the "Full Commission") affirmed the previous decisions, thereby making final the Commission's denial of parole. The National Appeals Board did not deem credible Rosenberg's claims of innocence of and noninvolvement in the Brinks conspiracy, instead concluding that the preponderance of the evidence supported findings to the contrary. While noting that it was not required to consider Blunk's parole status, the Full Commission explained that there were substantial differences between the co-defendants that justified the disparity, and, moreover, that releasing Blunk may have been a mistake. (Tab 16, p. 2; Tab 21, p. 6). The Full Commission apparently gave consideration to Rosenberg's offense of conviction, and, in fact, before rendering a final decision, remanded her case solely to explore further what Rosenberg intended to do with the explosives and firearms she and Blunk possessed at the time of their arrest. (Tab 9).

The hearing examiner conducted a reconsideration hearing on October 15, 1998. He concluded that the clarifications sought on remand regarding the offense of conviction did not warrant a change in the Commission's decision, (Tab 9, p. 5), and the Full Commission devoted its entire Notice of Action to a discussion of Rosenberg's involvement in the Brinks crimes. (Tab 16). Although the Full Commission acknowledged Rosenberg's change in attitude and institutional adjustment, it concluded that this progress was outweighed by the seriousness of her total offense behavior. As reasoned in one of the two original jurisdiction appeal summaries considered by the National Appeals Board, "There does not appear to be any risk to the public were she released on parole. The Commission's decision, therefore, rests solely on the other considerations of § 4206: whether release would depreciate the seriousness of the offense or promote disrespect for the law." (Tab 12, p. 5).

Having exhausted her administrative remedies, Rosenberg now appeals to this Court for appropriate relief. Her new attorney and the government have filed extensive briefs. The Court has heard oral argument.

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