Archives for posts with tag: law

In this case, the court’s majority denied a writ of habeas corpus to a convicted cult leader, Jeffrey Lundgren, who claimed ineffective assistance of counsel. The word “ninja” appears in the dissent, in which Judge Merritt argues that the defense counsel’s failure to claim the insanity defense was ineffective assistance. But the majority saw it as a reasonable decision and would not let the defendant get the opportunity to first test the case at trial and then allege insanity. The particular facts are about insanity by “deific degree”, meaning the defendant acted under belief he was ordered by god to kill.

JEFFREY D. LUNDGREN, Petitioner-Appellant,
v.
BETTY MITCHELL, Warden, Respondent-Appellee.

No. 02-3001; 440 F.3d 754
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Decided, March 13, 2006, Judge Merritt’s dissent begins:

Lundgren testified that he killed a family of five cult members as a religious sacrifice. He did so, he said, because he received a command from God that this sacrifice was necessary to prepare for “Zion” and the “Second Coming.” I disagree with our Court’s decision and reasoning in section II.D.3. above rejecting Lundgren’s ineffective assistance of counsel claim based on trial counsel’s inexplicable failure to raise the defense of insanity. Other than insanity Lundgren had no defense. In many similar “deific decree” cases in which a “delusional” person like Lundgren professed to be following God’s command to kill, defense lawyers have almost uniformly entered an insanity plea — and the jury has accepted the defense in some of the cases. As we shall see, even the prosecutors in the case could not understand why Lundgren’s lawyers did not enter such a defense. I will also apply Ohio’s definition of insanity in light of a mental illness theory counsel overlooked in bypassing his only available defense. I will then show why, in light of these considerations, the conduct of Lundgren’s counsel was manifestly ineffective. The writ of habeas corpus should have issued in this case to require a new trial in which Lundgren would be allowed to present the insanity defense before the jury.

The dissent then continues by listing a variety of deific decree insanity defenses over the past 200 years:

State v. Lafferty, 2001 UT 19, 20 P.3d 342, 363 (Utah 2001) (Mormon fundamentalist, who killed his sister-in-law and her infant child pursuant to God’s “removal revelation,” presented insanity defense to jury);

People v. Coddington, 23 Cal. 4th 529, 97 Cal. Rptr. 2d 528, 2 P.3d 1081, 1103, 1110-14 (Cal. 2000), overruled on different grounds by Price v. Superior Court, 25 Cal. 4th 1046, 108 Cal. Rptr. 2d 409, 25 P.3d 618, 633 n.13 (Cal. 2001) (defendant presented insanity defense to jury after strangling chaperones of two girls he sexually abused professedly because God commanded the actions);

State v. Blair, 143 N.H. 669, 732 A.2d 448, 449-50 (N.H. 1999) (counsel presented insanity defense to jury in case in which husband bludgeoned his wife and son with a hammer after experiencing a “trance” in which God revealed that he would be cast into the lake of fire if he refused to do so);

People v. Serravo, 823 P.2d 128, 130 (Colo. 1992) (en banc) (jury found defendant not guilty by reason of insanity for stabbing his wife “in order to sever the marriage bond” in accordance with God’s purported instructions);

State v. Ryan, 233 Neb. 74, 444 N.W.2d 610, 632 (Neb. 1989) (cult leader entered plea of not guilty by reason of insanity after following Yahweh’s “command” to torture and kill an “unfaithful” cult member);

Laney v. State, 486 So. 2d 1242, 1245-46 (Miss. 1986) (defendant shot police officers because God purportedly commanded the act and presented insanity defense to jury);

State v. Cameron, 100 Wn.2d 520, 674 P.2d 650, 654 (Wash. 1983) (en banc) (jury question regarding insanity defense existed when defendant implemented God’s “command” to stab repeatedly his stepmother to stop the “evil spirit” within her);

State v. Malumphy, 105 Ariz. 200, 461 P.2d 677, 678 (Ariz. 1969) (defendant, who shot and killed two co-employees due to his belief that God sanctioned the deeds, presented insanity defense to jury);

State v. Di Paolo, 34 N.J. 279, 168 A.2d 401, 407-08 (N.J. 1961) (defendant repeatedly stabbed ex-girlfriend because God professedly commanded the actions and presented insanity defense to jury);

People v. Schmidt, 216 N.Y. 324, 110 N.E. 945, 945, 34 N.Y. Cr. 51 (N.Y. 1915) (defendant, who claimed God commanded him to kill a woman as a sacrifice, presented insanity defense to jury);

State v. Hudson, 1999 Tenn. Crim. App. LEXIS 144, No. 01C01-9508-CC-00270, 1999 WL 77844, at **1, 8 (Tenn. Crim. App. Feb. 19, 1999) (appellate court remanded for entry of a judgment of not guilty by reason of insanity in case in which defendant shot her one-month-old nephew, believing that God had instructed her to kill “the son of Satan”);

State v. McDaniel, 1998 Ohio App. LEXIS 6122, No. 18805, 1998 WL 887184, at **2-3 (Ohio Ct. App. Dec. 16, 1998) (defendant, after experiencing religious delusion that God commanded him to kill his wife with a baseball bat, presented insanity defense to jury);

Ivery v. State, 686 So. 2d 495, 499-503 (Ala. Crim. App. 1996) (defendant, who claimed to be the “ninja of God” and to have followed God’s command “to kill people at will and to take their money as the spoils of victory,” presented insanity defense to jury);

People v. Wilhoite, 228 Ill. App. 3d 12, 592 N.E.2d 48, 55-58, 169 Ill. Dec. 561 (Ill. App. Ct. 1991) (court found defendant not guilty by reason of insanity after she followed God’s “command” to shove her nine-year-old daughter out of apartment window to pass “a test to see if the defendant could get into heaven” prior to the imminent end of the world);

Perkey v. Cardwell, 369 F. Supp. 770, 770-74 (S.D. Ohio 1973), aff’d, 492 F.2d 1244 (6th Cir. 1974) (defendant claimed he was carrying out God’s orders by shooting victim and entered plea of not guilty by reason of insanity);

United States v. Guiteau, 10 F. 161, 186 (D.D.C. 1882) (defendant alleged he was following God’s command to kill the president and presented insanity defense to jury);

Elizabeth Mehren, Fellow Inmate Guilty of Murdering Ex-Priest, Los Angeles Times, Jan. 26, 2006, at A15 (Massachusetts inmate, who claimed God commanded him to kill defrocked priest, presented insanity defense to jury);

Mom Who Killed Kids with Rocks Committed to Mental Hospital, Chi. Trib., Apr. 7, 2004, at 8 (Texas jury found mother innocent by reason of insanity after she stoned two of her young sons to death with heavy rocks professedly in accordance with God’s instructions); Richard Moran, The Origin of Insanity as a Special Verdict: The Trial for Treason of James Hadfield (1800), 19 Law & Soc’y Rev. 487, 508 (1985) (jury acquitted defendant who pled insanity defense following attempted shooting of the king of England purportedly at God’s direction);

cf. State v. Wilson, 242 Conn. 605, 700 A.2d 633, 641 (Conn. 1997) (“An individual laboring under a delusion that causes him to believe in the divine approbation of his conduct is an individual who, in all practicality, is unlikely to be able fully to appreciate the wrongfulness of that conduct.”).

With footnote #1

I am aware of only a few deific decree cases in which the insanity defense was not presented. In one of them, the failure to do so was held to constitute ineffective assistance of counsel. Galloway v. State, 1985 OK CR 42, 698 P.2d 940, 942 (Okla. Crim. App. 1985) (defendant, at the professed direction of God, “drove demons out” of his neighbor by killing him). In another, the defendant represented himself. Jon Krakauer, Under the Banner of Heaven xxii-xxiii (large print ed. 2003) (Mormon fundamentalist killed his sister-in-law and her infant child pursuant to God’s “removal revelation”). The brother of the aforementioned defendant declined to raise the insanity defense in his first trial because he believed the jury would interpret that defense as an admission of guilt, but, in his retrial, allowed counsel to present the insanity defense. State v. Lafferty, 2001 UT 19, 20 P.3d 342, 363 (Utah 2001); State v. Lafferty, 749 P.2d 1239, 1250 (Utah 1988). In addition, prosecutors wondered why some of Lundgren’s followers did not raise the insanity defense. See Cynthia Stalter Sasse & Peggy Murphy Widder, The Kirtland Massacre 273 (1991).

And so here, the word “ninja” is actually a reference to another case entirely. That case was in an Alabama criminal court. Again, in that case, and in this citing case, we see “ninja” in a case related to murder and religion.

Ultimately, the higher courts did not agree with Judge Merritt’s dissenting analysis (though a stay of execution was at one point temporarily ordered) and Jeffrey Lundgren was executed by the State of Ohio on October 24, 2006. The final clemency report can be read, with eight signatures recommending denial of clemency and explaining further details about his case. May the ninja gods have mercy on their souls.

This is a fascinating case from 2005 about a Federal employee accused of threatening his management after not being promoted, is then arrested, acquitted of the criminal charges, returns to work and tries to sue for discrimination, retaliation and hostile work environment. The Court here dismisses the claims.

EARL ROBERSON, JR., Plaintiff, v. JOHN W. SNOW, Defendant.
Civil Action No. 03-2135 (RWR)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
404 F. Supp. 2d 79

The opinion, decided September 12, 2005, is by Judge Richard Roberts.

The Court quotes the allegations that got Roberson (plaintiff in this action) arrested in 2001:

[Thomas Peska] alleged that plaintiff made comments that “he was going to take [Petska] out” and that he would “come in like a ninja and they would never know it.”

But Roberson (the plaintiff) was acquitted of the criminal charges related to those allegations. But despite prevailing, the Court, in this civil action, concludes:

Because the plaintiff has failed to adequately rebut the defendant’s non-discriminatory justifications for the non-promotion, investigation, and prosecution of the plaintiff, the plaintiff has not established that any material facts are left in dispute and, consequently, defendant’s motion for summary judgment will be granted on both the discrimination and retaliation claims. Because plaintiff has failed to demonstrate that the harassment he complains of was based upon his race, summary judgment will be granted on any hostile work environment claim.

So here, “ninja” is a word allegedly used as a threat in 2001 by an African American male “career federal employee who has worked for the IRS for over twenty-two years … a GS-13 level computer specialist and is employed in the Statistics of Income Division of the IRS”.

Note the connection to computers and taxes but note “Plaintiff denies making any such threatening statements or comments.” Also note that apparently the criminal judge agreed or did not think these comments reach the level of a criminal threat.

In this 2005 case the Seventh Circuit vacates a District Court jury decision against Shawano County in Wisconsin for its role in facilitating the sexual abuse of a troubled young man in foster care. The background check did not detect notable past “ninja” (stalker) behavior (in a different State), and though a jury found liability, this Appellate Court reversed.

NAHQUASEH B. WAUBANASCUM, Plaintiff-Appellee, v. SHAWANO COUNTY, Defendant-Appellant.
No. 04-3290

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
416 F.3d 658

Opinion by Judge Kanne, decided August 1, 2005:

Nahquaseh Waubanascum was placed into foster care in the Shawano County, Wisconsin, home of Mark Fry. Tragically, Waubanascum suffered sexual abuse at Fry’s hands. Waubanascum brought a 42 U.S.C. § 1983 claim against Shawano County, alleging that the county deprived him of substantive due process when it issued a “courtesy” foster care license to Fry. A jury returned a verdict in Waubanascum’s favor, and the district court entered judgment thereon against the county. We conclude, however, that Shawano County owed no constitutional duty to Waubanascum and thus is entitled to judgment as a matter of law. Accordingly, we vacate the judgment of the district court and direct that judgment be entered in Shawano County’s favor on remand.

Shawano County did issue a type of foster care license but it was relying on the request from the neighboring county, and “Menominee County kept legal custody over Waubanascum”. Continuing:

All was not well at the Fry home, however. In December 1995, Waubanascum began to have trouble sleeping and “dreamed” of Fry fondling him and masturbating in his presence as he attempted to sleep. Over the course of several months, these “dreams” progressed to more disturbing events during Waubanascum’s waking hours. Fry often contrived to sleep in the same bed with Waubanascum. Worse, Fry became increasingly and openly physical with Waubanascum, giving him “backrubs” that ultimately led to undisguised attempts to engage in various sex acts with Waubanascum. These encounters took place in Fry’s home and in various hotel rooms during several cross-country trips.

In February 1996, Waubanascum informed one of the Menominee County social workers about these acts of sexual abuse. That same day, Menominee County removed Waubanascum from Fry’s home. On April 30, 1996, Shawano County revoked Fry’s foster care license, and Fry was arrested and later convicted for his crimes.

It was only after the removal of Waubanascum from Fry’s home that Fry’s unsavory past came to light. Fry had been a history teacher for ten years in Illinois. In his off hours, however, Fry engaged in very disturbing behavior. In one bizarre instance, Fry was discovered at night on the roof of the home of one of his male students trying to peer into a window. Even more bizarre, Fry was dressed in black “ninja-style” attire, wearing a mask, and toting binoculars, a flashlight, and a canister of mace. Another student reported that he had spotted a similarly attired prowler in his backyard at night on more than ten occasions.

A person matching this description was also discovered attempting to enter the bedroom window of a sleeping student. After pursuing the person on foot, the student was able to identify the person as Mark Fry. These acts garnered considerable public attention in Northbrook, Illinois, where Fry lived. Local authorities eventually arrested Fry in 1991 and charged him with attempted burglary and disorderly conduct. He was later convicted of misdemeanor disorderly conduct. Following these events, Fry moved to Wisconsin, where, amazingly, he was licensed as a teacher and hired as a high school principal in Menominee County.

Unfortunately, Fry’s criminal past and history of bizarre behavior did not come to light when Menominee County processed Fry’s foster care application. It was later discovered that when the Wisconsin DOJ performed its criminal background check of Fry, it limited its inquiry to reported criminal activity within Wisconsin, not elsewhere. This oversight, combined with the other unfortunate occurrences recounted above, resulted in Waubanascum being placed in Fry’s home.

Menominee County and the school district settled out of court but the case against Shawano County proceeded to trial, “the court entered judgment in the amount of $ 175,000, plus almost $ 70,000 in costs and fees.” But this appellate court will not extend Constitutional duties of special relationship to this County and reverses as a matter of law.

This 2005 tax case involved three movies with Ninja in the title. It is also the only federal case with both “ninja” and “zombies” in the opinion – See ZombieLaw: “Astro Zombies in Tax Law” for a prior writeup of this case: Santa Monica Films v. IRS.

SANTA MONICA PICTURES, LLC, PERRY LERNER, TAX MATTERS PARTNER, * Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent CORONA FILM FINANCE FUND, LLC, PERRY LERNER, TAX MATTERS PARTNER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Nos. 6163-03, 6164-03
UNITED STATES TAX COURT
T.C. Memo 2005-104; 2005 Tax Ct. Memo LEXIS 104; 89 T.C.M. (CCH) 1157

Opinion by Judge Michael Thornton, filed May 11, 2005

The following film titles and development projects were listed in Schedule 1.6(b) of the exchange and contribution agreement as assets of SMHC:

57. Ninja Hunt

58. Ninja Showdown

59. Ninja Squad



All three are listed by the Court as 1987 movies (though IMDB suggests 1986). The Opinion also reveals that they were originally in the “EBD film library”. They were then sold. The Court notes difficulties in determining the market price of movies because of issues finding comparable films. For comparison noting the movie “Teenage Mutant Ninja Turtles”.

in 1993, New Line sold 200 features to Turner Broadcasting for $ 500 million ($ 2.5 million per title); … in 1997, Orion/Samuel Goldwyn sold 2,000 features to MGM for $ 573 million ($ 286,500 per title).

[footnote #135]:
The film library that New Line sold to Turner Broadcasting included the film titles: “Teenage Mutant Ninja Turtles“, “Misery”, and “City Slickers”. The film library that Orion/Samuel Goldwyn sold to MGM included the Academy Award-winning film titles: “Amadeus”, “Platoon”, “Dances With Wolves”, and “The Silence of the Lambs”.

The point is that these movies are not particularly comparable. The transactions involved shifted the losses from failed movies and were deemed to be a tax shelter. The Court here upholds the IRS ruling over the studio’s arguments.

This is, of course, not the first NinjaLaw Federal case to mention the Teenage Mutant Ninja Turtles, nor to mention them even though they are not necessarily relevant to the particularities of the case. Here in 2005, the Turtles movie is listed among a number of modern classics and blockbuster successes.

This 2004 case is about copyright of the design elements of miniature motorcycles.

KIKKER 5150 and KELLY KIKKERT, Plaintiffs, v. KIKKER 5150 USA, LLC, et al., Defendants.
No. C 03-05515 SI

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2004 U.S. Dist. LEXIS 16859; Copy. L. Rep. (CCH) P28,895

Decided – August 13, 2004
Opinion by district Judge Susan Illston:

This case concerns copyrights in miniature working motorcycles. Plaintiffs Kikker 5150 and Kelly Kikkert filed their complaint on December 8, 2003 against Kikker 5150 USA, Mark Gholson, and others (defendants or counterclaimants).

At issue is the design element of miniature motorcycles. Not toys, miniature-sized, functional motor vehicles.

defendants argue that “a Formula One race car is no more copyrightable than a Ford Escort and plaintiffs’ miniature motorcycles are no more copyrightable than a Harley-Davidson Heritage Softail or a Kawasaki Ninja.” As useful articles, defendants argue, plaintiffs’ miniature motorcycles are precluded from copyright protection.

The Court mostly agrees:

The Court finds that the miniature motorcycles are useful articles and therefore not eligible for copyright protection as such.

But,

The Court also finds, however, for the reasons discussed below, that there are genuine issues of fact concerning whether various “design elements” of the motorcycles “can be identified separately and are capable of existing independently as a work of art.”

The Court cites Fabrica Inc. v. El Dorado Corp., 697 F2d 890, 893 (9th Cir. 1983) which is a case about competing carpet companies and the potentially unfair use of a similar sales system, though the functional elements of are not copyrightable some aesthetic aspects may still be protected.

Therefore,

For this reason, defendant’s motion for summary judgment must be denied.

Summarizing:

Defendants argue that the motorcycles at issue are not copyrightable and ask the Court to issue a preliminary injunction or an order to show cause why a preliminary injunction should not issue. The Court finds that the motorcycles themselves are not copyrightable, since the motorcycles are useful articles and are not subject to copyright protection. However, since the Certificates of Copyright described the nature of the works as “three-dimensional, sculptural features and design elements of miniature motorcycles,” and since the Court cannot say as a matter of law that the design elements of the motorcycles are not severable and original, the Court declines to grant the motion to summarily adjudicate the copyrights’ invalidity.

No restraining orders where issued and so the case continued, presumably to be settled because I see no subsequent published case history.

Here the Court is quoting the defendant’s reply brief to mention the Ford Escort, the Harley-Davidson Heritage Softail and the Kawasaki Ninja. And we’ve seen mentions of the Kawasaki Ninja already in the NinjaLaw Court record . The Heritage Softail appears is four Federal Opinions and the Kikker 5150 case is its second appearance, the prior also being an intellectual property case. In contrast this is the first use of the Kawasaki Ninja in an IP case and the prior cases were all mentions of the actual bike. And the Ford Escort appears in over 300 cases beginning in the early 80s.

Note: here’s a warning about the dangers of Kikker bikes

Ultimately, this Kikker 5150 case stands for principles of copyright in toys – that is, that toys are copyrightable as to the aspects that are not part of the usable functions specifically. So it is fitting that “ninja” is mentioned here, because as we know from ninja law, “ninja” is strongly related to toys.

Habeas petition successful because of violation of Brady v Maryland and perjured testimony. Time served but conviction vacated. Allegations of robber with a “Ninja mask” (note, ninja is capitalized):

CLINTON TURNER, Petitioner,
– against –
SUNNY L. SCHRIVER, Respondent.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
97 CV 3074 (NG)
327 F. Supp. 2d 174

Opinion by Judge Nina Gershon, decided July 21, 2004:

Petitioner brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his 1988 conviction, after a jury trial, in the New York Supreme Court, Queens County (Sherman, J.), of Robbery in the First Degree in violation of N. Y. Penal Law § 160.15; Robbery in the Third Degree in violation of N. Y. Penal Law § 160.05; and Grand Larceny in the Fourth Degree in violation of N. Y. Penal Law § 155.30. Petitioner was sentenced as a second felony offender to an indeterminate term of imprisonment of ten to twenty years on the Robbery in the First Degree count, and concurrent terms of two to four years on the Robbery in the Third Degree and Grand Larceny counts. Petitioner has completed his term of imprisonment.

At trial:

Officer Cardo testified that, at around five a.m. on October 17, 1987, he responded to a radio call of an assault in progress and found four individuals arguing over a Toyota that was parked in front of a Dunkin’ Donuts on College Point Avenue in Brooklyn, NY. Three of the individuals were black males and one was a white male. The white male, Mr. Clarke, told Officer Cardo that, as he was walking to his car, he was approached by four individuals, the three black males who were present and one person who fled after robbing him. The robber was carrying a knife and wearing black pants, a shirt, and had a Ninja mask over his face. He was approximately six feet tall and around thirty years old. Mr.. Clarke gave the individual with the knife his wallet, which contained approximately $1500 in cash. After the man took his wallet, he pulled the Ninja mask off of his head which allowed Mr. Clarke to see his face. The three black males were placed under arrest and were subsequently transported to the 109th precinct.

And:

Mr. Clarke testified that he never told the police or anyone else that petitioner was wearing a Ninja mask. Mr. Clarke did not see petitioner take anything out of his car. Petitioner did not have anything on his head when Mr. Clarke found him in the car or during the chase, and Mr. Clarke never told the police that there was anything on his head at that time.

And:

In summation, defense counsel began by stating that petitioner had admitted his criminal record and did not try to hide from the facts of his life. Defense counsel compared Officer Cardo’s testimony that Mr. Clarke told him that he was robbed near his car by a man wearing a Ninja mask with that of Officer Krien that Mr. Clarke told him that he saw only one individual in his car, he chased him, and the person stole his wallet at knife-point inside one of the project buildings. Defense counsel also pointed to the inconsistencies between Mr. Clarke’s testimony and that of both of the officers and how Mr. Clarke’s story changed over time. Counsel argued that these inconsistencies, petitioner’s knowledge of where Mr. Clarke lived and the car that he drove, and the implausibility of Mr. Clarke’s story, all provided reasonable doubt that a crime had occurred.

Concluding:

[T]his court holds that there has been a violation of due process based upon Brady v. Maryland for failure to turn over material impeachment evidence [related to Clarke’s criminal history]; that holding is sufficient in itself to require relief. In addition, on the facts of this case, there has also been a violation of due process based upon the admission of perjured testimony [by Clarke] which the prosecutor should have known was false.

Conclusion

The petition for a writ of habeas corpus is granted, and the judgment of conviction is vacated.

This bankruptcy case with fraudulent credit filings, involves a Kawasaki Ninja 900 motorcyle. The question is about whether debts will be discharged in bankruptcy. The Court decides that some of the debt is and because of fraud, some of it isn’t.

In re: CARL VASILE and TERESA VASILE, Debtors. AUTOMOTIVE FINANCE CORPORATION, Plaintiff, v. CARL VASILE and TERESA VASILE, Defendants.
CASE NO.: 02-1465-3F7, ADV. NO.: 02-131
UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF FLORIDA, JACKSONVILLE DIVISION
297 B.R. 893;
2003 Bankr. LEXIS 1025; 16 Fla. L. Weekly Fed. B 253
August 12, 2003, Decided

On December 11, 2000 Carl Vasile presented Plaintiff with a bill of sale evidencing the purchase by Union Credit from Auto Temps of ten motorcycles and two cars. Included in the bill of sale were the following motorcycles for which Plaintiff has not been repaid:

including:

5.) a 2000 Kawasaki Ninja 900 motorcycle with a $ 9,000.00 purchase price. (Pl.’s Ex. 37 at 405.) (AFC Stock No. 503.) Union Credit purchased the motorcycle for $ 4,320.00 on September 7, 2000. (Pl.’s Ex. 41 at 4140.)

2000 kawasaki ninja 900

In this 2003 case, “Ninja” is a gang nickname (in 1988) for someone who was going to sell or give guns (“artillery” or “jammies”) to the convicted criminal conspirators. The crime is the execution-style murder of a police officer.

PHILIP COPELAND, Petitioner, – against – HANS G. WALKER, Superintendent, Auburn Correctional Facility, Respondent.
97-CV-2082 (ERK)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
258 F. Supp. 2d 105;

Decided – April 15, 2003

Opinion by Judge Edward R. Korman explains:

In the early morning hours of February 26, 1988, a young, newly appointed New York City Police Officer, Edward Byrne, sitting in his patrol car outside the home of a witness he was assigned to protect, was shot five times in the head from a distance of two feet. Officer Byrne died instantly. The killing was apparently meant to send a message to law enforcement authorities from Howard “Pappy” Mason, one of two Queens drug lords who were incarcerated at the time. Petitioner, Philip Copeland, was convicted by a jury sitting in New York State Supreme Court of carrying out this crime along with his co-defendants Todd Scott, David McClary, and Scott Cobb. Howard “Pappy” Mason was convicted his for his role in the offense.

And:

Petitioner’s role in the planning of this execution-style murder was firmly established through the testimony of Darrell Newby and Martin Howell, who were both members of the drug gang known as the “Beebos,” to which petitioner also belonged (T. 362-63, 527-28, 746, 754). Howell and Newby testified that on February 25, 1988, the night before Officer Byrne was killed, they attended a meeting in an apartment along with petitioner, Todd Scott, and Scott Cobb (T. 369, 370-71, 379). Prior to petitioner’s arrival, Howell heard Scott announce that “the boss had put out an order to hit a cop” (T. 532, 589-90, 591, 593). Scott assured that anyone who participated would receive $ 8,000 in return and would not get caught because “the guy sleeps on the job and it would be easy” (T. 532, 593). Upon petitioner’s arrival at the apartment, Newby (petitioner’s cousin), overheard Todd Scott tell petitioner and Cobb “that we have to kill a police officer regarding a witness” (T. 372, 481-82). Newby then observed both petitioner and Cobb nod their heads “up and down” in response to Scott’s remark (T. 374, 460, 464). Howell also overheard petitioner ask Scott if he had the “jammies,” or guns (T. 602, 664, 717, 727). Scott replied that he was going to get the “artillery” from “Ninja” (T. 603). Howell then heard petitioner say to Cobb, “We’re going to use your car” (T. 537, 603).

Petitioner’s complicity in the conspiracy to murder Officer Byrne is further evidenced by statements made both before the planning session and after the killing. Howell testified that earlier on February 25, petitioner declared to him that “the [*120] Boss [Pappy Mason] was very pissed off and he wanted to see it on TV while he was on Riker’s Island that a cop got iced” (T. 763-64, 770). In addition, the morning following the shooting Scott Cobb confessed to Newby that “We killed the cop” (T. 508, 521). That same day, Cobb told Howell, in petitioner’s presence, how two cars had been used in the “hit” — one car was “dumped” while the other was used to take the participants to a party in Manhattan after the killing (T. 576, 740-41). Howell also heard petitioner tell Cobb that he did not want to hear anymore about “the situation” (T. 577, 665, 743). On the Monday following the crime, Newby also overheard Scott Cobb confess to a third person that he had pulled up behind the police officer’s car and shot him (T. 508-09). Finally, on the Saturday following the shooting when some money was missing from the profits of drug sales, petitioner warned Howell and others that “if you all want to end up like that MF-ing cop, then that money better turn up” (T. 764-65).

In addition to this testimonial evidence, the prosecution also presented physical evidence linking petitioner to the crime. Specifically, petitioner’s fingerprint was found on an Econo-Lodge scratch pad, which was recovered from the yellow car used by the perpetrators (T. 942, 1490, 1732). Based on this evidence, a rational juror could certainly conclude that petitioner was guilty of intentional murder.

The Court here denies the petition for habeas corpus and denies certificate of appealability.

Recall also, this is the second time we’ve seen Ninja as a gang member’s nickname in Federal Court.

Someone was in a ninja outfit serving as lookout for a murder and fled over the wall. Defendant Majoy was convicted but new evidence suggests a witness lied. On habeas petition, the 9th circuit court of appeals, remands to the district court to sort it out.

ANTHONY JOSEPH MAJOY, Petitioner-Appellant, v. ERNEST C. ROE, Warden, Respondent-Appellee.
No. 00-56521
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
296 F.3d 770;

July 11, 2002, Filed

Judge Trott writing for the court:

The particularly ugly facts surrounding this conspiracy and double parricide need not be recounted in excruciating detail. Suffice it to say that two avaricious and ungrateful sons, Neil and Stewart Woodman, engaged the deadly services of accomplished killers to eliminate their parents on September 25, 1985 in order (1) to gain an advantage in a nasty business feud fueled by sibling rivalry, and (2) to collect on their mother’s $500,000 insurance policy. Majoy’s alleged role in this sordid scheme was to assist the hired killers, Steven and Robert Homick, before and during the homicides by (1) providing his accomplices with information about the victims’ whereabouts, and (2) acting as a lookout on Yom Kippur, the day of the attack.

Explaining

the prosecution maintained, on the basis of Dominguez’s original testimony, that Majoy was the black-clad “Ninja” lookout observed by a neutral bystander witness, Roger Backman, fleeing the scene of the crime after the killings.

But

However, in the second trial of Neil Woodman, Roger Backman identified – or described – the “Ninja” in such a way arguably as not only to exclude the middle-aged Majoy, but to implicate the youthful Dominguez as the Ninja lookout.

This pivotal moment occurred when defense counsel showed Backman a series of photographs marked as People’s Exhibit No. 2 which contained a photograph of petitioner Majoy, marked as “E”, and a photograph of Dominguez, marked as “F”. Counsel showed the photograph to Backman in an attempt to identify the wall-jumping “Ninja.”

Therefore:

Here, if a factfinder should conclude that Dominguez’s post-trial claims are credible, and that in light of Backman’s testimony and other evidence Majoy was neither the “Ninja” nor otherwise culpable, then the Schlup gateway would seem to open. (referring to Schlup v. Delo, 513 U.S. 298)

Concluding:

We have no doubt that Majoy is no angel and lacks the morals one would hope to find in a citizen of this nation. By his own account, he had more than sufficient reason to believe that the Homicks intended to harm someone, and he lifted not one finger nor spoke one word to derail their plot. Nevertheless, such information without more is not sufficient to convict anyone of a crime. The evidence of “more” in this case comes essentially from an outlaw witness who had a clear motive to lie to save himself and who now claims to have committed perjury against Majoy to promote his own interests.

Reversed and remanded.

UNITED STATES OF AMERICA -against- STEVEN CAMACHO and JAIME RODRIGUEZ, Defendants.
S12 94 Cr. 313 (CSH)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
163 F. Supp. 2d 287

Decided – October 1, 2001

The opinion of the court is written by Charles S. Haight, Jr.:

Camacho and Rodriguez were indicted on racketeering charges on May 25, 1994, along with multiple other defendants as part of the federal prosecution of members of the C&C gang, which operated in the Bronx. Early in the case, the government agreed to try Camacho and Rodriguez separately from the others, and accordingly they were severed from the primary case. After securing guilty pleas from numerous defendants and agreeing to additional severances, the government initially proceeded to trial against Angel Padilla, one of the founders of the C & C gang, and Ivan Rodriguez, the man accused of killing the other founder, Juan Calderon. Both Padilla and Ivan Rodriguez were convicted in May of 1995.

Camacho and Jaime Rodriguez were later tried pursuant to a superseding indictment dated February 12, 1996. They were charged at trial with conspiracy to murder Hector Ocasio, the murders of Hector Ocasio and Gilberto Garcia, and the attempted murder of Luis Garcia, all in aid of the C&C racketeering enterprise, in violation of 18 U.S.C. § 1959; they were also charged with a related firearms offense in violation of 18 U.S.C. § 924. A jury trial commenced on June 3, 1996. The government advanced the following theory of how the murders and attempted murder took place: After Calderon was killed, Padilla told the members of his security force to keep a low profile and brought in a new head of security, Hector Ocasio, who hired new security members. Soon, Padilla and several longtime members of his security force, including James Albizu, Joey Pillot, Trumont Williams, and Gregory Cherry, 1 began to distrust Ocasio. Ocasio had reduced weekly salaries and then cut several security members from the payroll. He also had given local drug dealers permission to shoot Williams and Cherry. Albizu conceived of a plan to murder Ocasio, and he discussed his plan with Pillot, Williams, and Cherry. He also discussed his plan with Camacho and Rodriguez, who together used to pay C&C “rent” to sell drugs in the gang’s neighborhood and were friendly with Albizu. In late December of 1992, Albizu, Williams, Cherry, Camacho, Rodriguez, and a cousin of Rodriguez’s agreed to meet to kill Ocasio, but the plan fell through when Cherry failed to appear.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
1 The members of the C&C gang were frequently referred to at trial by their nicknames: Albizu–“Pito,” Pillot–“Joey,” Williams–“Tree,” and Cherry–“G” or “Ninja.” Camacho and Rodriguez were sometimes referred to respectively as “Spanky” and “Jay”; two other indicated defendants appear to have the same nicknames (James Rodriguez–“Spanky” and James Boggio–“Jay”).

One issue in this case is credibility of testimony from Cherry (aka Ninja):

The case at bar is complicated by the fact that the admissibility of Cherry’s declarations must be viewed in the context of defendants’ motion for a new trial under Rule 33. Casamento and the other Rule 804(b)(3) decisions previously discussed all arose out of trial judges’ evidentiary rulings during trials from which convicted defendants took appeals. In other words, the only question before the courts of appeal was whether, during the trial, the trial judge correctly applied Rule 804(b)(3) in admitting inculpatory out-of-court declarations or excluding exculpatory ones. In this Rule 33 context, the “newly discovered evidence must be of a sort that could, if believed, change the verdict”; and, in making that determination, “the trial court has broad discretion to decide Rule 33 motions based upon its evaluation of the proof produced,” Gambino, 59 F.3d at 364.

While I am aware of no case discussing the interaction between evidentiary Rule 804(b)(3) and procedural Rule 33, I think that the expanded focus of the present inquiry makes it at least arguable that I may consider the credibility of Thomas as a witness: not to determine the admissibility of Cherry’s declarations, but rather to evaluate the likely effect of Thomas’s testimony upon the jury at a new trial.

I do not decide the point now, and will hear argument from counsel concerning it. But I entertain no doubt that the prudent course is to develop a full record during the evidentiary hearing. That means that the government may cross-examine Thomas fully as to whether or not in fact Cherry made the statements Thomas ascribes to him. The government may also offer extrinsic evidence (if it has any) bearing upon that question of fact.

The Court also decided to “deny defendants’ request for a grant of judicial immunity for Gregory Cherry to testify.”

This is not the first time Judge Haight had the opportunity publish the word “ninja” in the federal record. Recall NinjaLaw post about “Burger King Kids Club with Mutant Ninja Turtles” in which Judge Haight used the Teenage Mutant Ninja Turtles to support the holding that concepts and ideas of multi-ethnicity cannot be copyrighted.