U.S. v. Shakur, 1988 WL 34828 (S.D.N.Y.1988)

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

*1 On recent days during the consolidated trial of these indictments, still in progress, counsel for the defendants and then counsel for the government moved for a mistrial.

Prior to these occurrences the government had rested. The defendants' cases are coming in.

On March 24, 1988 counsel for defendants moved for a mistrial on the ground that one of the prosecutors had so misbehaved himself in the presence of the jury that the jury was tainted beyond the power of curative instructions.

On March 31 the government moved for a mistrial on the ground that one of defense counsel had so misbehaved himself in the presence of the jury that the jury was tainted beyond the power of curative instructions.

Assuming counsel intend these motions seriously and not for tactical or psychological effect, an unusual procedural question arises. Toward the end of a long, demanding criminal trial, whose circumstances are more fully explored infra, both defendants and the government move for a mistrial. To be sure, they do so on different grounds; and neither the prosecution nor the defense agrees with the grounds asserted by the other. But all parties agree that the trial should be aborted. Should the trial judge endorse that unusual consensus?

I think not. I conceive it my duty to continue the trial, notwithstanding the professed preference of all parties for a mistrial, unless one or another of the mistrial motions has merit. The investment of limited resources in this case has been too great to permit any other resolution.

This Memorandum addresses the merits of the mistrial motions.

A. DEFENDANTS' MOTION

Defendants' motion arises out of questions put by AUSA Jacobson during his cross-examination of a witness called on behalf of defendant Buck.

The government has entered into evidence a number of handwritten documents seized from an apartment the government argues Buck was occupying at the pertinent times. An FBI analyst has testified that these documents are in Buck's handwriting. The government points to certain statements in these documents as indirect evidence of Buck's participation in certain of the crimes charged.

In an effort to rebut that inference, Buck called as a witness Richard Fine. Fine, a physician, has known Buck for many years. They have worked together in various political organizations. The thrust of Fine's direct testimony was that certain statements in the documents were capable of an interpretation other than the inculpatory reading for which the government contends.

AUSA Jacobson then cross-examined Fine. Counsel and the witness were discussing one particular written statement. The cross-examination then broadened out. The following occurred:

"Q. You had a number of conversations with Ms. Buck about subjects you testified to on direct examination, correct?

A. Correct.

Q. I take it you are not a mind reader, are you?

MS. HOLMES: Objection

*2 THE COURT: It's argumentative. He is not. Put your next question.

Q. Can you say at any given time what Ms. Buck means when she writes something of your own knowledge?

A. Does she mean--

THE COURT: I will permit--if the witness has a view on that.

A. Would you repeat the question.

THE COURT: Read it back.

Q. I will rephrase it. Can you say of your own knowledge with any degree of certitude what Ms. Buck means when she writes any given sentence?

A. Any given--that's very broad. When she writes them I know what she means. If she says 'supporting the struggle,' I know what that means.

Q. Wouldn't it be fair to say that Ms. Buck is in the best position to say whether or not something means--what something means?

MR. BERMAN: Can we approach?

MS. HOLMES: Objection.

THE COURT: Sustained. Yes.

MR. BERMAN: Can we come up?

THE COURT: Yes, come up." Tr. 10,578-79.

At side bar, this transpired:

"THE COURT: Are you endeavoring to suggest that Ms. Buck should take the stand?

MR. JACOBSON: No, what I am endeavoring to suggest is they are going to argue that this document before, they were refuting, was in Ms. Buck's handwriting, seems to me conceding it is in her handwriting. They are going to argue that this document means certain things, and the way that you can tell that is because she made certain declarations to this individual years before this conspiracy even began. What I am suggesting or have a right to suggest to the jury is that when someone writes something, that the person who was in the best position to say what they mean is the author of the declaration and not other people.

THE COURT: Look, that's an argument. Whether it is proper or not is quite a different question, but it is not a question that can be usefully put to this witness. So I am going to sustain the objection to the question and I will hear counsel on the other points that might arise later on. I want to finish this testimony if I can.

MS. HOLMES: I do too, more than anyone else, but just for a record I move for a mistrial at this point. I believe that he did put before the jury the inference that Ms. Buck should testify.

THE COURT: I will hear you about that afterwards.

MR. BERMAN: Okay." Tr. 10,579-580.

AUSA Jacobson then concluded his cross-examination with this exchange:

"Q. With respect to government Exhibit 633 in evidence, I take it that since-- you don't know who wrote this?

A. I don't know for sure.

Q. And would it be fair to say you don't know when this document was written?

A. That's correct.

Q. So you don't know if this document was written at the time you had these conversations with Ms. Buck or sometime years later?

A. I don't know for sure, no.

Q. Wouldn't it be fair to say, sir, that only the author of the document can say what it really means?

MS. HOLMES: Objection, again--

MS. ELIJAH: Exact same thing.

THE COURT: The objection is sustained again.

*3 MR. JACOBSON: I have nothing further." Tr. 10,581.

Defendant Buck moves for a mistrial on the ground that the prosecutor's questions impermissibly suggested that Buck should take the stand to explain her meaning. Buck relies upon Griffin v. California, 380 U.S. 609 (1965), and United States v. Bubar, 567 F.2d 192 (2d Cir.1977). Defendant Shakur joins in Buck's mistrial motion. While acknowledging that in the circumstances Shakur's motion is weaker, his counsel argues that there is a prejudicial spillover effect.

The government has cited no authorities. AUSA Jacobson made this oral argument in response to the defense motions:

"MR. JACOBSON: Just briefly, I think what you inquired of me at side bar was, 'Are you doing this--are you commenting upon her silence, not--' again, we will have to check the record, and I made the argument as to why I wasn't, and I think the second question I asked was in a slightly different form, but at any rate, the point I was trying to make and that ultimately argued [sic] to the jury is that it is nonsense to believe that someone had conversations with someone, you know, ten or 15 years ago can know what's on their mind when they write a document that's found in that person's house a decade later.

The only person who is in a position to know what is meant by what is written is the author of that document. Now, Ms. Buck can testify or not testify as she wishes, but what I am trying to do is cast doubt on the--not the credibility, but the reliability of the assertion that's going to be made by these defendants and their argument to the jury that these guys somehow because of their conversations in 1966 and thereafter know what Ms. Buck meant when she wrote a document.

I think that's a bunch of nonsense. I think the only person, as I was trying to get across through my question, the only person who knows what they mean when they write a document is that person and not someone who had conversations with him a decade before the document is discovered.

THE COURT: Well, one issue that may have to be addressed in this context is that that is a common sense proposition which is arguable to the jury as a matter of common sense, but did not need to be elicited in the presence of the jury by this particular question to a witness.

MR. JACOBSON: And if that is the case, then it seems to me the only thing I can be accused of is asking the question twice. It's not grounds for a mistrial. If I can make that argument to the jury, then that's a proper argument to be made to the jury. It might have been an argumentative question, but it's certainly not grounds for a mistrial because it is the argument, that is what they fear.

THE COURT: Yes, but what you are saying is if it is a legitimate argument, and as to that I say nothing at present, but if it is a legitimate argument to make, it really has within it the same concerns, in other words, if you made the argument you could then be met with an outraged cry that it is not a proper argument for just that reason.

MR. JACOBSON: Right, I believe it is an absolutely proper argument to be made given what I expect the defense is going to argue to the jury, and the reason for calling this witness is that they can explain based on their conversations what she meant, and our point is only the author of a document can explain what they meant, not one who had conversations with them decades before." Tr. 10,636-38.

*4 In Griffin v. California, the defendant was convicted of murder after a jury trial in a California court. During summation the prosecutor "made much of the failure of petitioner to testify", 380 U.S. at 610. After reviewing the evidence against defendant, the prosecutor argued to the jury:

"These things he has not seen fit to take the stand and deny or explain.

And in the whole world, if anybody would know, this defendant would know.

Essie Mae is dead, she can't tell you her side of the story. The defendant won't." Id. at 611.

Although the California constitution permitted the prosecution to comment upon the defendant's failure to testify, the Supreme Court held that the prosecution argument violated the Fifth Amendment, made applicable to the States by reason of the Fourteenth Amendment. The Fifth Amendment, the Court concluded, "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Id. at 615 (footnote omitted).

No one would quarrel with these principles. But the facts of Griffin bear no meaningful resemblance to the case at bar.

The Second Circuit's decision in Bubar is closer to the bone. Bubar involved a federal prosecution. Following their conviction, defendants challenged the prosecutor's "repeated mention in his rebuttal summation of their failure to produce evidence to rebut elements of the government's case", 567 F.2d at 199. Those arguments, defendants contended, "amounted to commentary on their failure to testify and as such violated their Fifth Amendment privileges against self-incrimination."

The Second Circuit rejected the appeal. Judge Timbers' discussion on the point is worth quoting at length:

"We hold that in neither category did the substance of the prosecutor's comments violate appellant's constitutional rights. The prosecutor is entitled to comment on a defendant's failure to call witnesses to contradict the factual character of the government's case, United States v. Dioguardi, 492 F.2d 70, 81-82 (2d Cir.), cert. denied, 419 U.S. 873 (1974), as well as his failure to support his own factual theories with witnesses. United States v. Rodriguez, 556 F.2d 638, 641 (2d Cir.1977); United States v. Lipton, 467 F.2d 1161, 1168 (2d Cir.1972) cert. denied., 410 U.S. 927 (1973). A constitutional violation occurs only if either the defendant alone has the information to contradict the government evidence referred to or the jury 'naturally and necessarily' would interpret the summation as a comment on the failure of the accused to testify. United States ex rel. Leak v. Follette, 418 F.2d 1266 (2d Cir.1969), cert. denied, 397 U.S. 1050 (1970).

Such was not the case here. None of the United States Attorney's remarks related to evidence rebuttable solely by a defendant. A valid, corroborated alibi defense could have explained the fingerprints, the telephone calls and Coffey's false signature. Appellant's claims really go to the prosecutor's phrasing rather than the substance of his remarks. On several occasions he referred to a defendant's failure to 'explain' or 'refute' certain evidence. Viewing such remarks in the context of the rebuttal summation as a whole, we do not believe that this ambiguous form of expression 'naturally and necessarily' would be interpreted by the jury as a comment on a defendant's failure to testify. The thrust of the prosecutor's rebuttal summation was directed at the prior arguments of defense counsel. We believe that the jury so understood the remarks in question. Moreover any conceivable misunderstanding on the part of the jury was nipped in the bud by Judge Newman's emphatic curative instructions--given first sua sponte at the end of the prosecutor's rebuttal summation and again after a recess in a formulation submitted by Peter Betres' counsel. United States v. Lipton, supra, 467 F.2d at 1169; United States v. Nasta, 398 F.2d 283, 285 (2d Cir.1968." Id. at 199-200 (footnotes omitted) (emphasis added).

*5 The curative instruction given to the jury by District Judge Newman (as he then was), referred to by the court of appeals in text, appears in a footnote at 567 F.2d 200 n. 10:

" '[T]o whatever extent the argument of government counsel called upon any defendant to testify or to explain away any evidence, to whatever extent that may have occurred, such argument was improper, uncalled for and illegal.' "

In the case at bar, I incline toward the view that notwithstanding the prosecutor's disclaimers, by his questioning he ran the government aground on the first of Bubar' s two disjunctive shoals. A constitutional violation occurs, Judge Timbers wrote, if "the defendant alone has the information to contradict the government evidence" at issue. The explicit thrust of the prosecutor's cross-examination was to impress upon the jury that defendant Buck alone had the information, i.e., what she meant by her own words, to contradict the inference the government will ask the jury to draw from those words.

Unless the government cites me to contrary authority, or argues more persuasively than it has that this line of questioning does not give rise to Fifth Amendment problems, I will preclude the argument in summation that the prosecutor says he wishes to make.

However, I deny Buck's motion for a mistrial. A question, even if repeated, occurring during the course of a lengthy trial seems to me less problematic in respect of insinuations to a jury than a prosecutor's arguments in summation or rebuttal. Defendants may ask, if so advised, for a particular instruction on the point to be included in the Court's charge.

Shakur's motion is also denied a fortiori.

B. GOVERNMENT'S MOTION

*6 The government's motion for a mistrial was made on March 31, 1988. It is based upon certain questions posed by Chokwe Lumumba, counsel for Shakur, to Jeffrey Haas, a witness called on behalf of Shakur.

Defense motions for mistrials occur not infrequently during criminal trials. It is, I think, highly unusual--at least in my own experience unprecedented-- for the government to make such a motion. Furthermore, the present motion is particularly startling giving the totality of the circumstances.

Jury selection in this case began in November, 1987. The testimony began to be taken on the last day in November. The trial is complex, involving a significant number of separate alleged crimes of violence or attempts, gathered together under the umbrellas of conspiracy and criminal RICO. The government called many witnesses and introduced many exhibits before resting its case. We are now underway into the defense case. Since defendants are indigent, their attorneys are compensated under the Criminal Justice Act. So are the fees of investigators, expert witnesses, and other supporting forces I have approved as necessary to the defense. The jurors have been working hard and faithfully ever since they were first selected. I would imagine that the public cost of this trial is nearing the one million dollar mark, if it has not exceeded it. The expenditure of judicial resources upon the trial, while impossible to quantify in dollar terms, has been very considerable.

All this effort, all this expenditure the government by its motion now asks to be cast away, and a new trial commenced (with defendant Shakur remaining in pre-trial detention). This is not a motion for government to make unadvisedly or lightly, or from tactical calculation, or as the result of overwrought reactions to unwelcome evidence. Rather, such a motion should be made advisedly, soberly, and based upon a genuinely held perception that a mistrial at this stage is the only means to preserve the integrity of the trial process.

Assuming in counsel's favor such a perception, I will carefully consider the merits of the government's mistrial motion. To do so, it is necessary to say something about the government's case against Shakur and the evidence it has submitted.

The government has called two eyewitnesses to a number of the crimes charged in the indictment. The jury is entitled to believe those witnesses; and if it does, to convict Shakur on a number of the charges. But the credibility of the witnesses is subject to attack. The government has also offered evidence of Shakur's conduct, both before and after he became a fugitive in 1982, from which the jury will be asked to infer Shakur's guilt. That evidence includes post-Nyack/Nanuet fugitivity, from which the government will request a consciousness of guilt charge; and evidence of Shakur's conduct of his affairs during the times when the crimes charged were being committed.

One area of Shakur's conduct the government has proved is visits he paid to Joanne Chesimard, or Assata Shakur, an inmate in a New Jersey State prison, shortly before a number of individuals forcibly accomplished Chesimard's escape. The government charges Shakur of being one of those individuals. His pre-escape visits, the government says, were in aid of planning the escape.

*7 Another aspect of the governments' proof is Shakur's use of a friend's apartment in a manner which could be characterized as clandestine, and which involved meeting with various other black males, at which meetings weapons were observed.

Under familiar principles I have held that Shakur in his defense is entitled to elicit evidence of conduct or the then existing state of his mind which would rebut the government's inferences.

Those rulings have brought the government into waters it would have preferred to avoid. Documents obtained by Shakur and associates under the Freedom of Information Act ("FOIA") demonstrate that for a considerable time Shakur and the Republic of New Afrika, with which Shakur was at all pertinent times closely associated, have been the subject of illegal surveillance, harassment, and disinformation by the FBI as part of that lamented, unconstitutional project known as COINTELPRO.

The defense wishes to offer evidence of Shakur's awareness of these illicit activities of government, as an explanation of certain aspects of his conduct. Specifically, the case for the defense is that Shakur visited Chesimard in aid of her own FOIA efforts, which had the ultimate objective of a reversal of the conviction for which she was incarcerated.

The witness Jeffrey Haas is an attorney practicing in Chicago. He first met Shakur in the fall of 1977 or the winter of 1977-1978. Shakur, active in inquiring into and exposing COINTELPRO matters, came to Chicago to solicit Haas' participation in a task force. Because counsel advised that Haas would be addressing state of mind issues, I directed that his testimony first be taken on the voir dire in the absence of the jury, so that rulings on admissibility could be made. See United States v. Harris, 733 F.2d 994, 1003 (2d Cir.1984). This occurred on March 30. At the voir dire Haas testified that one of the objectives discussed in his first meeting with Shakur was to obtain FOIA documentation in an effort to reverse the convictions of "several persons from the Black movement who were in prison." Tr.10,983. There were three such individuals: Geronimo Pratt, imprisoned on the West Coast; the convictions of a number of Republic of New Afrika ("RNA") individuals, including one Imari Obadele; and Assata Shakur (or Chesimard). Responding to Mr. Lumumba's questions on the voir dire, Haas testified as follows:

"Q. According to your plan, were any individuals assigned to work on these particular cases?

A. Right, I believe that you and I were assigned to do the work on the RNA case, together with another lawyer in Chicago, named Allison Edwards, and I believe that Dr. Shakur and a lawyer named Jonathan Lubell were going to pursue Freedom of Information Act and post conviction remedies on behalf of Assata Shakur in order to get the documents around her case.

With regard to Jeronimo [sic] Pratt I believe there was a lawyer on the West Coast, because he was confined on the West Coast and had been convicted on the West Coast, who was going to do that work, and I don't recall who the lawyer was and who the other people were who were going to do that.

*8 Q. Was there a gentlemen at the meeting by the name of Chimarenga?

A. Yes.

Q. Do you know whether he had been from the West Coast?

A. I believe he had been from the West Coast." Tr.10,984-85

During the voir dire Haas testified at length concerning his association with Shakur, and communications that passed between them. Counsel then argued at length what the witness would be permitted to testify to in the presence of the jury. The defense wished the jury to learn of vast quantities of FOIA documents on many subjects. These government wished to exclude as much as possible. I announced my rulings on the scope of Haas's permissible testimony as a first order of business on March 31, before the jury was brought in. Those rulings appear at Tr. 11,101-06. In brief, I said that Haas could testify in respect of Shakur's prison visits to Chesimard "and the circumstances which gave rise to Dr. Shakur's participation in that project." Tr. 11,102. I also said he could testify with respect to any FOIA documents which Haas could say were in Shakur's possession with respect to FBI surveillance of Shakur personally, and of the RNA, of which Shakur was an active member. Ibid. As to Shakur's apprehension of personal danger (on the fugitivity issue), I ruled that Haas could testify with respect to Shakur's awareness of injuries to other individuals only if Haas was in a position to say that at some time Shakur had expressed to him, or to others in his presence, a fear or concern for his own life or personal safety. Id. at 11,104-05.

Haas's testimony before the jury then began. The following two incidents underlie the government's mistrial motion:

Haas testified that Shakur asked him if Haas would be willing to work "on some of the cases that were the priorities" of the National Task Force of COINTELPRO Litigation and Research, with which Shakur was associated. Over the government's objection Haas was permitted to describe the Task Force generally, as necessary background to evidence I had ruled was admissible. Tr. 11,111- 12. The following then transpired:

"Q. What was that organization?

A. What Dr. Shakur explained to me was a group of people who had been in the movement for some time were quite concerned with the effects of COINTELPRO on the Black Movement and so they were very anxious to try to expose as much as they could and learn as much as they could about the government programs against the Black Movement in the 1960's and 1970's.

The Task Force, as he explained it to me, would have 3 objectives. The first objective would be to try to get information that would show that certain persons who were in jail didn't get a fair trial and that there was evidence--

MR. JACOBSON: Your Honor, I am going to object.

*9 THE COURT: I will permit this as background.

The witness may answer.

A. That there was evidence that the government had that showed that certain people should not have been confined to jail, and he listed those situations as Assata Shakur, Jeronimo Pratt and the RNA 11.

MR. JACOBSON: Your Honor, I have an objection and a side bar.

THE COURT: Come up.

(At the side bar)

MR. JACOBSON: I had no objection yesterday about when you said you would let them testify about Assata Shakur, I made a specific objection that there be no reference to the fact that they were aware that she was being framed or anything like that, I made the same objection this morning.

You ruled on it twice. Now we are having testimony about how Jeronimo Pratt was framed and how Assata Shakur was framed.

THE COURT: We are not going to get into the details of it, but there has got to be some background about what they were going to do.

MR. JACOBSON: Fine with Assata Shakur. Jeronimo Pratt is another case. They are clearly going outside the [sic] what you just ruled.

THE COURT: Come directly to Assata Shakur." Tr. 11,112-13.

Later in his testimony Haas described FOIA files Haas had shown to Shakur or that Shakur had obtained and shown to Haas. This testimony was given:

"Q. Okay. Fine. What else did Dr. Shakur speak to you about in relationship to these documents?

A. He said that the documents showed a pattern of continued surveillance of him in New York City, he said that they showed that when they attempted to set up an organization in New York City to provide news information to media outlets that that [sic] was watched very carefully by the FBI, and I think he showed me a document, there was a name for the organization, something news service, I don't remember exactly what it was.

And he told me that there was another document that was entitled or had the heading BLA and [sic] which his name was listed, and he was concerned about that again because he didn't want that label on him and he was fearful the FBI would target him. And he told me that given the history of the deaths of black leaders, he didn't like the way his file looked.

MR. JACOBSON: Objection, move to strike.

MR. LUMUMBA: You ask for a general question, you are going to get a general answer.

THE COURT: No need to say anything further in the presence of the jury. I will hear you later." Tr. 11,166-67.

After the lunch recess the government moved for a mistrial in these terms:

"MR. JACOBSON: We are also asking for a mistrial at this point. We had extended oral argument about what this witness was able to testify about and what he was not going to be able to testify about.

I assume that the reason for these motions in limine for taking extended testimony outside the presence of the jury and then having argument after that testimony is so we can be very careful about what the jury hears and what they don't hear.

It was clear to me at least from your ruling that the jury was not going to hear about cases outside of cases that pertain to Dr. Shakur, Mutulu Shakur, Mr. Shakur, whatever you want to tell him, and the RNA 11.

*10 You ruled and it didn't make any difference, we heard about how Jeronimo Pratt's case was at issue and we heard about how the government was responsible for the deaths of several black leaders.

It comes out, the jury hears it and you can do all you want about making instructions to the jury about disregarding it, but the jury is poisoned by these kinds of remarks. They know it, defense counsel knows it and you know it, Judge, and it seems to me, what is the point--

THE COURT: Mr. Jacobson, this is the second time in this trial you have instructed me on what I know. I do not appreciate that kind of comment.

Go on with your application.

MR. JACOBSON: Most respectfully, Judge, I don't see the point in having this [sic] extended colloquies, discussions, motions in limine, if counsel are going to proceed to ask the very questions that you rule are inadmissible.

And I say this most respectfully, I know your Honor is aware that the government only has one crack here and that we don't have a right of appeal if there is an acquittal, and precisely because of that it seems to me something has got to be done to prevent these kind of remarks from coming out.

Once they come out the jury is poisoned, it is poisoned, and if it is poisoned to the detriment of the government to the extent that there is an acquittal because of that, we have no remedy. So the remedy has to occur during the trial and in the course of the testimony before it.

And, most respectfully, Judge, we ask the court to take some action that is going to prevent this kind of testimony from coming out again, and if it means having to take the whole testimony outside the presence of the jury with respect to these kinds of witnesses, direct and cross-examination, maybe we ought to do that, but I fail to see the point in having these extended colloquies on the voir dire or the offer of proof outside the presence of the jury and then extended argument about it, a ruling from the court if the very same information that the court said cannot come out comes out." Tr. 11,173- 75.

This testimony contains no grounds for a mistrial.

As for the reference to Geronimo Pratt, it is true that in his voir dire testimony, Haas did not describe services rendered directly by Shakur to Pratt. However, counsel for Shakur argued at the time that this reference to Pratt was subject to connection; and that connection appears to be established by the written offer of proof of Pratt's testimony, which in the circumstances I directed defendant to produce. According to the offer, Pratt is in a position to testify that at relevant times, Shakur and attorney Lubell visited Pratt in prison to review FOIA documents from Chesimard's file, in aid of the efforts to assist Chesimard. Pratt will also testify, according to the offer, that Shakur gave comparable assistance to Pratt. This testimony would corroborate the testimony of Haas concerning the nature and purpose of Shakur's prison-visiting activities. Accordingly the reference to Pratt in Haas's testimony is not prejudicial at all, let alone rising to the level of requiring a mistrial. Nor, in my view, would it rise to that level, even absent the connection.

The second point of reference is Haas's testimony, after Shakur reviewed his own FOIA-released files, Shakur said "he was fearful that the FBI would target him. And he told me that given the history of the deaths of black leaders he didn't like the way his file looked."

*11 Comparable testimony was elicited from another defense witness, Sekou Odinga, on April 4, over the government's strenuous objection. AUSA Martin at one point characterized the admission of such testimony as a judicial invitation to "jury nullification."

I accept the sincerity of the prosecutors' objections, but cannot accept the reasoning. The government concedes, as it must, that Shakur has the right to prove through witnesses his statements of then-existing states of mind which tend to rebut the government's characterizations of his conduct. But the government seeks to preclude Shakur's stated reasons for his state of mind. The government says defense witnesses may testify that Shakur said he was afraid, but they may not testify as to why Shakur said he was afraid.

Given the issues arising out of the government's proof, I cannot accept the fairness of limiting the evidence for Shakur to expressions of concern contained in a vacuum. Nor can I accept the government's contention that references in the testimony to what may have befallen other black leaders of the time "poisons the jury" and renders it incapable of deciding the issues before it.

To guard against any such risk, I have particularly instructed counsel and the witnesses that witnesses may testify only as to what they heard Shakur say; witnesses are not permitted to testify as to their own perceptions of other incidents. I have particularly instructed the jury with respect to the limited use they may make of this evidence. I have further instructed the jury that because of that limited use the government is neither required nor entitled to offer proof concerning the facts of the other incidents. I will repeat these instructions in the general charge. I will preclude defense counsel from arguing that any of these other incidents in fact occurred in any particular way. If defense counsel attempt such an argument, I will intervene at once and admonish counsel. I would not imagine that counsel would welcome repeated admonitions from the trial judge during a summation.

These procedural remedies seem to me sufficient to guard the government against the risk it articulates, without depriving defendant of his right to make a case.

I certainly cannot accept the prosecutor's contention that limiting instructions would be of no avail. In Bubar, supra, the Second Circuit approved as sufficient the trial judge's curative instruction that the jury should disregard a prosecutor's argument that was "improper, uncalled for and illegal" (because unconstitutional). Defendants are entitled to an equal measure of confidence in the jury's ability to comprehend and act upon the instructions of the trial judge.

CONCLUSION

The motions for a mistrial are denied.

*12 It is SO ORDERED.