evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy." Guidelines Manual § 6A1.3(a). Accord, Fed. R. Evid. 1101(d)(3); Silverman, 692 F. Supp. at 790. Indeed, Kikumura concedes "hearsay is not per se inadmissible in a sentencing hearing, just as hearsay is not per se unreliable." Kikumura Sentencing Memorandum at 6.
The evidence offered by the Government through the affidavits of Michael R. Hartman, Special Agent of the FBI, and Jacob Van Mastright, a Sergeant-Major with the Netherlands National Police, contain in themselves and in conjunction with other evidence more than sufficient indicia of reliability to support their probable accuracy. Guidelines Manual § 6A1.3(a); Napolitano, supra. In addition, there is a question as to whether "any factor important to the sentencing determination is reasonably in dispute." Id. Other than a series of objections to the Presentence Investigation Report ("PSI"),
which at the sentencing hearing Mr. Kuby advised should be read as denials, Kikumura has offered nothing to counter the facts offered to prove his terrorist affiliations.
With regard to the proffered affidavits, Kikumura objected only to the Hartman affidavits.
The totality of the evidence submitted in this case which consists of the affidavits of Hartman, Van Mastright and the Government's written statements of counsel, the Government sentencing memorandum, together with other independent proof such as the testimony of case agent Joseph R. Fuentes and James T. Thurman, a bomb expert, and the stipulated facts for the bench trial constitute a body of appropriate reliable proof.
The independent proof offered in this case corroborates the hearsay. For example,
the detailed written statements of Government counsel concerning the procurement and use of a foreign passport and visas are corroborated by the stipulated facts upon which Kikumura's convictions are based. The anti-personnel nature of the bombs, as submitted in the Government Sentencing Memorandum, is supported by the testimony of Joseph T. Thurman, a bomb expert, and the components of the actual bombs themselves. The terrorist affiliations of Kikumura, as argued in the written statements of Government counsel and the Hartman and Van Mastright affidavits, are supported by the stipulated facts which forcefully infer Kikumura had organizational, technical and financial support to transit Europe and effect entry into this country and had training as to the construction of anti-personnel bombs.
In addition, Kikumura has not objected to paragraph 158 of the PSI which states: "Government investigators state that the defendant entered college but quit and was a member of several left wing groups."
PSI, para. 158. This uncontested fact corroborates, to an extent, the statements in the Hartman affidavits by demonstrating Kikumura's background in left wing organizations. This is another fact which adds to the reliability and credibility of the data in the Hartman affidavits.
In addition, much of the information in the Hartman affidavits has been confirmed by the Japanese law enforcement authorities (with regard to the time the informant said Kikumura was traveling). The fact that he arrived in the Bekaa Valley training camp in the Fall of 1986, Hartman Affidavit at para. 11, is consistent with his release by Dutch authorities in late August, 1986. Kikumura's possession of aluminum powder and ammonium nitrate at the time of his arrest and their use to make a high explosive, as described by Mr. Thurman at the hearing, support the informant's assertion of the JRA Bekaa Valley training with these items. Id. at para. 8. The statement of a JRA planned strike in the United States is supported by the very facts and circumstances of this case and its similarity to the Naples bombing.
The informant's statement that Kikumura is a country boy, id. at para. 12, is supported by the letters describing Kikumura sent to the court by his family. The statement that Kikumura is relatively fluent in English, id., is supported by Kikumura's travels around the United States and his conduct and statements at trial and at the sentencing hearing where he indicated he did not need the assistance of an interpreter.
The statement of the informant that Kikumura "was a competent commando who had knowledge about explosives," id., is supported by his activities in this country and the very manufacture and sophistication of the bombs. The statements the informant attributed to Kikumura about an arrest in another country, id., are corroborated by the Dutch arrest.
The informant's statements, as related in the Hartman affidavits, are strongly corroborated by all of Kikumura's activities in this country. The parallels of Kikumura's activities in this country with the training in the Bekaa Valley are more than coincidence, especially when all of the facts are taken into consideration. Although Kikumura did not have a fifty pound bag of agricultural-grade
ammonium nitrate when arrested, he did have a small amount of the substance. The logical inference is that Kikumura once had a larger amount of ammonium nitrate. Significantly, ammonium nitrate and aluminum powder were items used in Bekaa Valley training for bomb production.
Considering the foot prints left by this evidence, especially as described by Mr. Thurman, the conclusions drawn are amply supported. Kikumura had all the ingredients to make high explosives and in fact he assembled sophisticated anti-personnel bombs and an advanced fuzing device. The same training was available to JRA members at the Bekaa Valley. He had no instruction manuals to accomplish the manufacture of the bombs -- this knowledge had to be learned some place. The evidence leads to the conclusion that the statements of the informant contained in the Hartman affidavits are very reliable. The statements are not mere allegations; they have substance and credibility.
At the sentencing hearing Kikumura challenged the Government's use of the hearsay statements of the informant contained in the Hartman affidavits. However, Kikumura failed to adduce any evidence that the information contained in these affidavits, or for that matter any other evidence offered by the Government, was false.
To the contrary, Kikumura declined to testify or offer any evidence to bring into question the credibility or accuracy of the Government's evidence.
Based upon the nature of the acts committed and for which Kikumura was found guilty, the data in the PSI, the testimony at the hearing, together with the affidavits and written statements of Government counsel, a body of appropriate proof emerges, the sum of which is greater than its constituent parts. See United States v. Cifuentes, supra, slip op. at 15; Silverman, 692 F. Supp. at 790.
Kikumura argues the Government should be held to a standard of proof higher than a preponderance of the evidence. Kikumura argues the Government must prove its allegations by clear and convincing evidence. Kikumura Sentencing Memorandum at 5. However, the defense did not address the directives of § 6A1.3 with regard to the resolution of disputed facts. The Commission indicated in § 6A1.3 that in resolving a reasonable dispute, the court may consider relevant information without regard to its admissibility under the rules of evidence "provided that the information has sufficient indicia of reliability to support its probable accuracy." Id. (emphasis added). The term "probable accuracy" does not suggest a clear and convincing standard. Probable accuracy can be read to mean more likely than not -- a preponderance standard. The reasoning in United States v. Lee, 818 F.2d 1052 (2d Cir.), cert. denied, 484 U.S. 956, 98 L. Ed. 2d 376, 108 S. Ct. 350 (1987), a pre-guidelines case, establishing a preponderance of the evidence standard at a sentencing hearing, is equally applicable to a guidelines case. See also Silverman, 692 F. Supp. at 788; McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986). Accordingly, the preponderance of the evidence standard has been applied in making the findings of fact in this case.
Kikumura argues no departure from the guidelines is warranted because, among other things:
1) No one actually suffered death or serious injury. Kikumura Sentencing Memorandum at 11.