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United States v. Rosenberg

argued: September 11, 1986.

UNITED STATES OF AMERICA
v.
ROSENBERG, SUSAN LISA, APPELLANT; UNITED STATES OF AMERICA V. BLUNK, TIMOTHY, APPELLANT



On Appeal from the United States District Court for the District of New Jersey, Newark, D.C. Criminal Nos. 84-00360-01 and 84-00360-02.

Author: Hunter

Before: ALDISERT, Chief Judge, HIGGINBOTHAM and HUNTER, Circuit Judges.

Opinion OF THE COURT

HUNTER, Circuit Judge:

1. Susan Lisa Rosenberg and Timothy Blunk appeal their convictions and sentences before the United States District Court for the District of New Jersey on nine counts of possession of firearms, explosives and false identification documents. This case requires us to determine, inter alia, whether the district court abused its discretion in sentencing these defendants to the maximum prison terms provided by the applicable statutes, whether these sentences resulted from impermissible bias on the part of the district judge, and whether consecutive sentences properly may be imposed for possession of explosives in violation of 26 U.S.C. § 5861(d) (1982) and for the carrying of explosives during the commission of a felony under 18 U.S.C. § 844(h)(2) (1982). The American Civil Liberties Union of New Jersey, the National Lawyers Guild - New Jersey Chapter, the Center for Constitutional Rights and the National Emergency Civil Liberties Committee, concerned that the defendants' sentences may be related to their political beliefs, have submitted a brief to this court on the issue as amici curiae.

2. The district court's jurisdiction stemmed from 18 U.S.C. § 3231 (1982); we have appellate jurisdiction pursuant to 28 U.S.C. § 1291 (1982). For the following reasons, we will affirm the judgments and sentences in all respects.

I.

3. Defendants do not challenge the government's evidence. This evidence showed that on November 3, 1984, Susan Rosenberg rented a storage bin at a public storage facility in Cherry Hill, New Jersey. Identifying herself to the facility's manager with a New York driver's license issued in the name of "Barbara Grodin," Rosenberg provided several telephone numbers at which she could be reached, paid for the storage bin in cash, and received an entrance code number which would provide access to the facility. Rosenberg did not unload anything into the bin at that time.

4. Several days later, when the manager was not in the office, an employee rented out the bin that had been assigned to "Barbara Grodin" to another party. When the manager returned to the office, he requested the new party to remove his belongings from the bin. The new renter refused, however, and the manager reassigned "Barbara Grodin" to another storage bin and attempted to contact her to inform her that both her bin and her entrance code had been changed to reflect the reassignment. When the manager was unable to contact her using the phone numbers she had supplied, he wrote a letter to "Barbara Grodin" and sent it to the address listed on the driver's license Rosenberg had given him. Soon thereafter he received a phone call from the real Barbara Grodin who informed the manager that she had not rented a storage bin. Moreover, Ms. Grodin wrote the manager that her wallet, containing her driver's license, had been stolen. The manager suggested that Grodin contact the Cherry Hill police concerning the matter, which she did. After a number of phone conversations between Grodin, the manager, and the Cherry Hill police, the parties agreed that if Rosenberg returned to the storage facility the manager would contact the police.

5. On November 29, 1984, Rosenberg and Timothy Blunk drove up to the facility in a car towing a rented trailer. Unable to enter with the old access code, Rosenberg knocked on the office's window to request admission. The manager recognized Rosenberg as the woman who had identified herself as Barbara Grodin. The manager directed Rosenberg to a new storage bin, provided her with a new access code, and returned to the office to phone the police.

6. Officer Di Francisco responded to the call. After speaking with the manager, Di Francisco proceeded to the storage area where he observed the defendants covering certain items on the floor of the bin with opaque plastic. Di Francisco noted that one of the items appeared to be an ammunition box and that another item, a large tubular object, bore the clearly visible label "blasting agent." Di Francisco also observed that both Rosenberg and Blunk were wearing glasses and wigs. Di Francisco asked the defendants for identification, and both produced New York driver's licenses. Rosenberg's identified her as Barbara Grodin, and Blunk's was issued in the name of William Hammond. When Rosenberg was unable to provide Di Francisco with the correct birthdate on her license, she volunteered to retrieve additional identification from her car.

7. Di Francisco did not permit her to return to the car, but instead led the two outside the bin where they met with Officer Martin who had just arrived. Di Francisco told Martin to stay with Blunk while he and Rosenberg returned to the manager's office. At the office, Di Francisco called headquarters, confirmed that the license was stolen, and again asked Rosenberg for her birthdate. She gave him a date that was different from the one she had earlier given him, as well as different from the one on the license. At this point, the officer arrested Rosenberg and placed her in the rear seat of his car, drove back to the storage area, arrested Blunk, and placed him in Officer Martin's car.

8. Di Francisco then proceeded to defendants' car in an effort to locate the additional identification that Rosenberg mention. On the front seat of the defendants' car, Di Francisco found two purses each containing a fully loaded semi-automatic pistol with additional ammunition clips.

9. After obtaining a search warrant, the police searched the bin, discovering a stockpile of ammunition, weapons, explosives, and false identification documents. In particular, the bin contained twelve assorted guns, two of which -- an Uzi 9mm. semi-automatic rifle and an Ithaca twelve-gauge shotgun with its barrel "sawed-off" -- were required to be registered to defendants in the National Firearms Registration and Transfer Record under 26 U.S.C. §§ 5861(d); nearly two hundred sticks of dynamite, more than one hundred sticks of DuPont Trovex, a high explosive, a wide array of blasting agents, blasting caps, batteries and switches; and hundreds of false identification documents, including various drivers' licenses, social security cards, and FBI and DEA identification badges.

10. On December 6, 1984, a federal grand jury returned an indictment charging Blunk and Rosenberg with conspiracy, firearms offenses, and possession of false identification documents. Trial commenced on March 7, 1985. From the beginning of the proceedings, it was evident that Blunk and Rosenberg styled themselves as "political prisoners" rather than criminal defendants. They insisted on being absent from most of the trial proceedings and directed their retained counsel to remain inactive during the trial. To accommodate them, the trial judge provided Blunk and Rosenberg with closed circuit television through which they could monitor the proceedings, and appointed a public defender to remain in the courtroom for the trial to protect the defendants' interests. Both defendants made opening statements to the jury in which they asserted that their conduct was justified by reference to "a higher body of laws." On March 17, 1985, the jury returned a verdict of guilty on all submitted counts. The court imposed the maximum prison sentence on each count and ordered that each sentence run consecutively.*fn1 The defendants' statements at sentencing indicated that their only regret was that they had not been successful.

11. Blunk and Rosenberg timely filed this appeal.

II. SENTENCING ISSUES

A. Length of Sentence

12. Appellants argue that the district court abused its discretion in imposing the maximum term of imprisonment provided by statute. Our standard of review over this claim is limited. It is well settled that absent procedural defects, an appellate court will not disturb the district court's sentence if it falls within the statutory limits. See Gardner v. Florida, 430 U.S. 349, 357, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977); United States v. Tucker, 404 U.S. 443, 447, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972); United States v. Matthews, 773 F.2d 48, 52 (3d Cir. 1985); United States v. Felder, 744 F.2d 18, 20 (3d Cir. 1984); United States v. Del Piano, 593 F.2d 539, 540 (3d Cir.) (per curiam), cert. denied, 442 U.S. 944, 61 L. Ed. 2d 315, 99 S. Ct. 2889 (1979). Blunk and Rosenberg invite us to find the required procedural defects in the trial court's alleged anticommunist statements and remarks concerning defendant's parole eligibility. For the reasons set out in our discussion of the defendants' bias claims, we conclude that the record does not support their contention.

B. Bias

13. Appellants also argue that their sentences resulted from the district judge's bias or prejudice against them, and therefore that we should vacate their sentences and remand the matter for resentencing before a different judge. The proper procedure for disqualification for bias or prejudice is governed by 28 U.S.C. § 144 (1982).*fn2 For the purpose of this statute, the alleged bias or prejudice must stem from an extrajudicial source rather than from facts which the judge has learned from this participation in the case. See United States v. Grinnell Corp., 384 U.S. 563, 583, 16 L. Ed. 2d 778, 86 S. Ct. 1698 (1966); Beverly Hills Bancorp, 752 F.2d 1334, 1341 (9th Cir. 1984). Recusal motions pursuant to this statute must be timely filed, contain a good faith certificate of counsel, and include an affidavit stating material facts with particularity which, if true, would lead a reasonable person to the conclusion that the district judge harbored a special bias or prejudice towards defendants. See generally United States v. Thompson, 483 F.2d 527 (3d Cir. 1973). No such motion was here made.*fn3

14. There is also a rarely invoked exception to § 144's statutory procedure that requires disqualification when a judge displays "pervasive bias" towards defendants regardless of the source of the bias. See Three Mile Island Alert, Inc., 771 F.2d 720, 739 (3d Cir. 1985), cert. denied, 475 U.S. 1082, 106 S. Ct. 1460, 89 L. Ed. 2d 717 (1986); United States v. Meester, 762 F.2d 867, 885 (11th Cir.), cert. denied, 474 U.S. 1024, 106 S. Ct. 579, 88 L. Ed. 2d 562 (1985); Davis v. Board of School Commissioners, 517 F.2d 1044, 1051 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S. Ct. 1685, 48 L. Ed. 2d 188 (1976). Appellants argue that the district court's adverse decisions concerning bail and security, the court's ...


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