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KIKUMURA v. UNITED STATES

August 28, 1997

YU KIKUMURA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 Petitioner Yu Kikumura ("Kikumura"), presently incarcerated at A.D.X. Florence, a Federal Penitentiary in Florence, Colorado, brings this petition for a writ of habeas corpus (the "Habeas Petition") pursuant to 28 U.S.C. § 2255. *fn1" For reasons set forth below, the Habeas Petition is denied. There is no probable cause for appeal.

 Facts

 A. Arrest and Indictment

 On 12 August 1988, Kikumura was detained by New Jersey State Trooper, Robert Cieplensky ("Cieplensky"), for careless driving. United States v. Kikumura, 698 F. Supp. 546 (D.N.J. 1988) ("Kikumura I "). Following an exchange between Cieplensky and Kikumura, Cieplensky identified seven cylinders of gunpowder and shot on the backseat of the vehicle driven by Kikumura (the "Kikumura Vehicle"). Id. Cieplensky proceeded to conduct a pat down search of Kikumura and an interior search of the Kikumura Vehicle. The search led to the discovery of a large bag of lead shot, seven gunpowder canisters and three homemade bombs, as well as altered passport and visa documents, in the Kikumura Vehicle. Id. Kikumura was subsequently arrested. The grand jury returned a twelve count indictment ("Indictment") against Kikumura, charging him with, among other charges, the possession of explosives with the intent to damage property or harm people, pursuant to 18 U.S.C. § 844(d) ("Section 844(d)"). See Indictment. *fn2"

 B. Motion to Suppress

 Kikumura filed a motion to suppress ("Motion to Suppress"), challenging the legality of the pat down search and search of the Kikumura Vehicle. Kikumura I, 698 F. Supp. at 555. A suppression hearing was conducted on 30 September 1988. See Transcript of Proceedings, dated 30 September 1988. The detention, pat-down search and search of the vehicle were found to be constitutional. Kikumura I, 698 F. Supp. at 562. The Motion to Suppress was denied, id. ; the decision was affirmed on appeal. Kikumura III, 918 F.2d at 1090, 1093.

 C. Trial on Stipulated Facts

 The matter was scheduled for trial on 28 November 1988. At that time, counsel for Kikumura, William M. Kuntsler ("Kuntsler") and Ronald L. Kuby ("Kuby") (collectively, "Trial Counsel"), proposed the Government and Kikumura enter into a stipulated set of facts, while preserving the issues for appeal, and Kikumura waive a trial by a jury. United States v. Kikumura, 706 F. Supp. 331, 333 (D.N.J. 1989) ("Kikumura II ") (citing Transcript of Proceedings, dated 28 November 1995 ("28 November 1995 Tr."), 155-161).

 Kikumura stipulated he transported the explosives with the knowledge and intent that they be used to damage or destroy property. United States v. Kikumura, 947 F.2d 72, 74 (3d Cir. 1991) ("Kikumura IV "). Kikumura refused to stipulate to the statutory language that he transported the explosives for their use to "kill, injure and intimidate one or more individuals." Id. The Government made clear it was "stipulating to the facts for purposes of the trial, the adjudication of guilty or innocence," and that it was not stipulating to facts under the Sentencing Reform Act for the purposes of sentencing. See Transcript of Proceedings, dated 29 November 1988 ("29 November 1988 Tr."), 6; see also id. at 25-6. Kikumura agreed the "stipulation [did not] bar [the Government] from doing anything they would ordinarily be permitted to do at sentencing." Id. at 26.

 "Kikumura was convicted of numerous counts of interstate transportation of explosive devices and passport offenses, including a charge that he violated [Section 844(d)] which prohibits the transportation of any explosive in interstate commerce 'with the knowledge or intent that it will be used to kill, injure or intimidate any individual or unlawfully to damage or destroy any building, vehicle or real or personal property.'" Kikumura IV, 947 F.2d at 73-4.

 D. Sentencing

 Kikumura was sentenced on 7 February 1989 ("First Sentencing Hearing"). Kikumura IV, 947 F.2d at 74. The conviction exposed Kikumura to the statutory penalty of one hundred years in prison, fines of several millions dollars, plus a supervised release term of three years. Kikumura II, 706 F. Supp. at 334.

 The Department of Probation ("Probation") computed the Guideline range for imprisonment pursuant to the Sentencing Commission Guidelines Manual ("Guidelines") and the Sentencing Reform Act, 18 U.S.C. § 3551 et seq.. Kikumura I, 706 F. Supp. at 334. Probation calculated the range of imprisonment to be a total of from twenty-seven to thirty-three months for all twelve counts, based upon a criminal history of one and a total offense level of eighteen. Id. A term of supervised release of not less than two and not more than three years and a fine in the range of $ 6,000 and $ 60,000. Id.

 The departure was based upon facts as found at the suppression hearing, the trial facts as stipulated by Kikumura, the testimony at the First Sentencing Hearing and other reliable evidence offered at the First Sentencing Hearing. *fn3" Kikumura II, 706 F. Supp. at 335. The findings of fact upon which the upward departure was based are summarized below. *fn4"

 a. Kikumura's Background

 Kikumura is a member of the Japanese Red Army ("JRA"), a terrorist organization. Kikumura II, 706 F. Supp. at 335. Kikumura received training from, and has trained members of, the JRA. Id.

 In May, 1986, Kikumura was arrested when he attempted to enter the Netherlands through Schiphol Airport in Amsterdam. Kikumura II, 706 F. Supp. at 336. Netherlands authorities searched Kikumura's luggage and discovered a cardboard drink container filled with over two pounds of a high explosive. Id. The authorities also found a Sanyo radio concealing six detonators of the type used to detonate explosives. Id. "The placement and concealment of the detonators was so well done they appeared to be integral parts of the radio." Id. After Kikumura spent four months in a Netherlands prison, his prosecution was discontinued -- not because he was innocent -- but due to an technical illegality under Netherlands law. Id.

 In autumn 1986, Kikumura arrived at a camp located in the Bekaa Valley of Lebanon ("Bekaa Valley Camp"). Kikumura II, 706 F. Supp. at 335. The Bekaa Valley Camp was maintained by a terrorist organization, a member of which was the CI who supplied data to the FBI. Id. Beginning in as early as 1984, three members of the JRA attended the Bekaa Valley Camp for one week to receive "instruction on different methods of combining chemicals to make explosives and detonators and the construction of improvised bombs." Id. at 335-36. The CI was informed the one week training session was the commencement of a more cohesive training session for the JRA. Id. at 336.

 Two of the individuals from the JRA returned to the Bekaa Valley Camp in January, 1985. They received training on the manufacture of explosives using ammonium nitrate and aluminum powder. Kikumura II, 706 F. Supp. at 336. They also practiced using flash bulbs as detonators and preparing mercury fulminate detonators. *fn5" Id.

 The CI described "Kikumura as a 'country boy' who spoke English[,] ... trained other JRA members in the use of rifles and handguns ... [and] was a competent commando with a knowledge of explosives." Kikumura II, 706 F. Supp. at 336. Kikumura also admitted to the CI he had been to many countries and had previously been arrested in another country. Id. at 336-37. The CI was told by another member of the JRA at the Bekaa Valley Camp that the United States was the main enemy of the JRA and the JRA planned to strike the United States. Id. at 337.

 b. Current Offense Conduct

 In February 1988, while in Europe, Kikumura obtained several visas for entry into several European countries and the United States. He opened a bank account in Switzerland and obtained a valid Japanese passport which was altered to show his likeness. Kikumura II, 706 F. Supp. at 337.

 Upon entry into the United States, Kikumura "rented an apartment [in Manhattan], purchased a 1980 Mazda automobile and traveled approximately 7000 miles to many out-of-the-way locations to purchase and assemble the components for his destructive devices." Kikumura II, 706 F. Supp. at 337.

 On 31 March 1988, Kikumura purchased a container of epoxy, a can of contact cement, electrical tape and all purpose wire at a K-Mart in Lexington, Kentucky. Kikumura II, 706 F. Supp. at 337. The tape and wire matched components of the three bombs retrieved from the Kikumura Vehicle. Id. at 338.

 On 1 April 1988, Kikumura purchased various wires, an on-off switch, electric jacks and an electric circuit tester *fn6" from Electronic Supply, Inc. in Huntington, West Virginia. Kikumura II, 706 F. Supp. at 338. The items "were later used by [Kikumura] in making the electronic time-delay fuzing device." Id.

 On 9 April 1988, Kikumura purchased a hacksaw, carton sealing tape, a file and a vinyl suitcase. Kikumura II, 706 F. Supp. at 338. The hacksaw was used to remove the tops of fire extinguishers, transforming them into bomb casings which were then filled with gun powder and lead shot. A flash bulb suspended from the top of each bomb casing was placed and wired to initiate the explosion of the gun powder. Id.

 On 10 April 1988, at a Clover Department Store in Cheltenham, Pennsylvania, Kikumura purchased two packages of Sylvania flash bulbs, a package of "D" cell batteries and a carton of cigarettes. Kikumura II, 706 F. Supp. at 338. These materials were recovered from the vehicle of Kikumura, including flash bulbs from inside each of the bombs. Id. The flash bulbs were connected to wires which were to be used by Kikumura to connect the bombs to the time-delay fuzing system. Id. Three other items recovered from the vehicle of Kikumura were two cans of aluminum powder, ammonium nitrate and mercury from several thermometers. Kikumura II, 706 F. Supp. at 338.

 On 11 April 1988, Kikumura attempted to sell his car and to rent another in Philadelphia, but was unsuccessful. Kikumura II, 706 F. Supp. at 338. Kikumura attempted to obtain a rental car by offering $ 500.00 and then $ 1,000 to the owner of a rental agency. Id.

 c. Construction of the Anti-Personnel Bombs

 d. Parallel Terrorist Conduct

 On 5 April 1986, a terrorist bomb exploded at a discotheque in West Berlin, killing an American soldier and injuring 50 other Americans. Kikumura II, 706 F. Supp. at 339. On 14 April 1986, after obtaining strong evidence the West Berlin bombing was the work of Libya, the Government effected air attack on Libyan targets. Id.

 On 14 April 1988, a powerful car bomb exploded outside an America U.S.O. club in Naples, Italy, killing five people and injuring eighteen others. Kikumura II, 706 F. Supp. at 339. Fingerprint samples identified Okudaira, an associate of Kikumura at the Bekaa Valley Camp, as the prime suspect in the Naples bombing. Id.

 The mission embarked on by Kikumura, and paralleled by Okudaira in Italy, was found to appear to be a retaliatory attack on the second anniversary of the United States raid in Libya. Kikumura II, 706 F. Supp. at 339. The evidence was found to "strongly suggest[]" Kikumura planned to detonate his bombs in New York City at approximately the same time as the Naples bombing. Id. At the time of his arrest on 12 April 1988, the bombs were fully assembled and ready to be detonated. Kikumura had in his possession an airline schedule bearing the handwritten notation, "Friday morning, 330.00, 4/15." Id.

 As stated, these factual findings, among others, formed the basis for an upward departure from the Guideline range of between twenty-seven and thirty-three months to an aggregate sentence of thirty years. *fn7" Although a preponderance of the evidence standard was employed, it was held the evidence would also surpass a clear and convincing evidence standard. Kikumura II, 706 F. Supp. at 345 & n.28.

 E. First Appeal

 On appeal ("First Appeal"), Kikumura raised three arguments. Kikumura IV, 947 F.2d at 74. Kikumura challenged the finding that the bombs were intended to kill persons was clearly erroneous. Id. Kikumura also argued an upward departure was barred because the Guidelines already took into account all aspects of his criminal activity. Id. Finally, Kikumura argued if the departure was permissible under the Guidelines, the extent of the departure was unreasonable. Id.

 The Circuit rejected the first two arguments. It applied a clear and convincing standard to uphold the finding Kikumura intended to kill people. Kikumura III, 918 F.2d at 1101, 1104. "Because Kikumura requested no higher standard of proof in his sentencing memorandum, [the Circuit] assumed without deciding that the clear and convincing standard [was] sufficient." Id. at 1101. The Circuit also upheld the departure as legally permissible pursuant to 18 U.S.C. § 3553(b) because "none of the offense Guidelines under which Kikumura was sentenced adequately took into consideration Kikumura's intent to commit murder." Id. at 1109. The Circuit held Kikumura's intent to commit murder was "an eminently reasonable basis for an upward departure." Id. at 1110.

 The Circuit, however, employed a novel sentencing methodology to determine whether the upward departure was reasonable. Kikumura III, 918 F.2d at 1110. The Circuit turned to the Guidelines and applied "analogic reasoning" to assess the reasonableness of the departure. Id. at 1111. The court reasoned "it would throw the structure of the Guidelines out of kilter to say that a defendant may receive more time on a 'departure' than he could have received had he been convicted of the crimes leading the judge to depart." Id. at 1112.

 The Circuit first analogized Kikumura to a category VI offender based upon his criminal history and terrorist background. Kikumura III, 918 F.2d at 1113. It then looked to the intent to kill finding and analogized that finding to the attempted murder Guideline, which carries a base offense level of twenty. Id. at 1115. The offense level was increased by five to reflect the harm and casualties the bombs would have caused had they been detonated. Id.

 The Circuit then applied a two-level increase to the analogy for Kikumura's "extraordinarily meticulous planning." Kikumura III, 918 F.2d at 1116. The Circuit declined to depart upwards on the basis of an intent to disrupt a Governmental function, id. at 117, but did adjust upward five levels for extreme conduct and endangerment of public safety. Id. at 1118. The analogized offense level was calculated to be thirty-two based on these factors, bringing the applicable guideline range to be between two hundred ten to two hundred sixty-two months. Id. at 1119. The sentence was vacated and the matter remanded for re-sentencing consistent with those conclusions. Id.

 F. Re-sentencing Proceeding After Remand

 On 1 March 1991, Kikumura was re-sentenced to a term of two hundred sixty-two months, a three year term of supervised release, and a special assessment of $ 600.00. Kikumura IV, 947 F.2d at 75.

 G. Second Appeal

 On his second appeal ("Second Appeal"), Kikumura argued "his conviction under [Section 844(d)] was 'too slender a reed' to support consideration at the sentencing of his specific intent to commit multiple murder when he had not been convicted of that crime." Kikumura IV, 947 F.2d at 75. Kikumura argued he was entitled to the "entire panoply of rights" that apply at trial. Id. at 75-76.

 The Circuit did not consider this argument. The Circuit held "Kikumura explicitly waived any objection to the Government's introduction of evidence of his intent to kill at sentencing." Kikumura IV, 947 F.2d at 76. Kikumura "agreed ... the Government would be free to introduce whatever evidence it deemed appropriate at the [First Sentencing Hearing]" and "Kikumura did not object [when the Government did introduce evidence of his intent to kill at sentencing]." Id. Kikumura failed to preserve the issue for appeal. Id.

 Moreover, the Circuit noted the upward departure was explicitly held to be legally permissible on direct appeal. Kikumura IV, 947 F.2d at 76. Accordingly, the Circuit stated "the district court [at re-sentencing] ... was bound to follow that mandate; it had no authority to reconsider the issue." Kikumura IV, 947 F.2d at 76.

 Kikumura also argued "the factual findings at a sentencing proceeding must be supported by proof beyond a reasonable doubt and that hearsay may only be admitted at sentencing if it satisfies the Confrontation Clause." Kikumura IV, 947 F.2d at 76. In response to that argument, the Circuit stated: "Kikumura cannot continue to litigate questions already decided by this court in a prior proceeding. Our observation in Kikumura [III], that we may require a more demanding standard of proof at sentencing proceedings 'at some later date' ... was not an invitation to Kikumura to bring a second appeal religitating the issue and urging that higher standard upon us." Id. at 77. The Circuit held the standard of proof of clear and convincing evidence, arrived at in the earlier appeal, was now-the "law of the case." Id.

 Kikumura finally argued it was error to deny a continuance at re-sentencing to allow Kikumura the opportunity to obtain the counsel of his choice. Kikumura IV, 947 F.2d at 78. This argument, as well, was rejected by the Circuit. Id.

 H. Habeas Petition

 The Habeas Petition was filed on 12 August 1996. After briefing by the parties, the Habeas Petition was dismissed without prejudice for violation of the page limitations established by the Local Rules for the District of New Jersey. On 1 April 1997, the parties were granted leave from the page restrictions and a briefing schedule was established. See 1 April 1997 Order.

 On 2 April 1997, the parties were granted further leave from the page restrictions to address the following issue:

 
Whether the [Habeas Petition] enables this court to re-open sentencing and impose the original sentence pursuant to Koon v. United States, 518 U.S. 81, ...

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