S7R 98 Cr. 1023 (KTD).
February 7, 2005
On May 29, 2001, following a five-month jury trial before the Honorable Leonard B. Sand of this Court, Wadih El-Hage was convicted of: (1) conspiracy to kill United States nationals; (2) conspiracy to commit murder; (3) conspiracy to destroy buildings and property of the United States; and (4) eighteen counts of perjury. Conviction on each charge stemmed from El-Hage's participation in the al Qaeda terrorist organization. El-Hage's three co-defendants at trial, Mohamed Sadeek Odeh ("Odeh"), Mohamed Rashed Daoud al-'Owhali ("al-'Owhali") and Khalfan Khamis Mohamed ("K.K. Mohamed"), were convicted of a total of 284 counts stemming from their activities with al Qaeda, including their participation in the 1998 synchronized attacks on the United States Embassies in Dar-es-Salaam, Tanzania and Nairobi, Kenya. The Government sought the death penalty against al-'Owhali and K.K. Mohamed. However, following a two-day penalty phase, the jury did not impose the death penalty. On October 18, 2001 all four defendants were sentenced to life imprisonment. Under the rules of this Court the matter was reassigned to me.
Odeh and al-'Owhali were each convicted of a total of 266 counts, including: (1) conspiracy to murder; (2) conspiracy to kill United States nationals; and (3) 213 counts of murder arising from their involvement in the bombing of the United States Embassy in Nairobi, Kenya. K.K. Mohamed was convicted of twenty-two counts, including eleven counts of murder arising from his involvement in the bombing of the United States Embassy in Dar-es-Salaam, Tanzania.
On October 24, 2003, El-Hage filed this Motion seeking various relief. First, El-Hage claims he is entitled a new trial Second, El-Hage seeks to reopen his pre-trial motion to suppress evidence gathered from wiretaps and a search of his home in Kenya. Finally, El-Hage makes a broad array of discovery requests, including demands for access to several purported al Qaeda figures. As discussed, infra, with one exception El-Hage's motion and his requests are without merit.
Al-'Owhali and Odeh have joined in this motion; K.K. Mohamed has not. Throughout this Opinion Order, unless otherwise indicated, "El-Hage" refers to the three defendants El-Hage, Odeh, and al-'Owhali.
I. Request for a New Trial
"Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.P. 33. "Such authority is only exercised, however, in the most extraordinary circumstances." United States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993). Where a motion is based on newly-discovered evidence courts will only grant a new trial if the evidence: (1) could not have been discovered through due diligence before or during trial; (2) is material; (3) is non-cumulative; and (4) would probably have led to an acquittal. Id.
El-Hage bases his request for a new trial on three grounds: (1) the jury's alleged exposure to extrinsic information; (2) the Government's alleged use of an informant to gain information from El-Hage during his confinement at the Metropolitan Correctional Center ("MCC"); and (3) the Government's failure to disclose (either before or during trial) certain recordings of interviews with Jamal Ahmed Mohamed al-Fadl ("al-Fadl"), one of the Government's trial witnesses.
As discussed below, El-Hage's first two claims are entirely without merit. His allegations on these two points are insufficient to require an evidentiary hearing, let alone a new trial. El-Hage has, however, raised sufficient questions regarding the recordings of the al-Fadl interviews to warrant an evidentiary hearing.
A. The Jury's Alleged Exposure to Extrinsic Information
On January 5, 2003, the New York Times published an article purportedly based on interviews with several jurors from El-Hage's trial. See Benjamin Weiser, A Jury Torn and Fearful in 2001 Terrorism Trial, N.Y. Times, January 5, 2003 ("Weiser article"). The article included statements that: (1) "[o]ne juror used the Internet at home to research a difficult legal concept concerning . . . Mohammed Sadiq Odeh"; (2) "A number of jurors also became aware that the accused were in leg shackles"; and (3) "two jurors [sought] religious guidance as they struggled to weigh factors for or against execution for Mr. al'Owhali."Id. El-Hage argues that these alleged improprieties warrant a new trial or, at minimum, an evidentiary hearing. I disagree.
With good reason, courts are reluctant to conduct post-verdict inquiries into the conduct of jurors during their deliberations.King v. United States, 576 F.2d 432, 438 (2d Cir. 1978). This reluctance stems from a desire "to avoid harassment of jurors, inhibition of deliberation in the jury room, a deluge of post-verdict applications mostly without real merit, and an increase in opportunities for jury tampering; it is also to prevent jury verdicts from being made more uncertain." Id. Accordingly, a post-trial hearing into juror conduct is required only where "a party comes forward with clear, strong, substantial and incontrovertible evidence . . . that a specific, non-speculative impropriety has occurred." United States v. Ianniello, 866 F.2d 540, 543 (2d Cir. 1989) (internal quotation marks omitted); see also King, 576 F.2d at 438 ("to authorize a post-verdict inquiry there must be `clear evidence', `strong evidence', `clear and incontrovertible evidence', `substantial if not wholly conclusive evidence.'" (quoting United States v. Dioguardi, 492 F.2d 70, 78-80 (2d Cir. 1974)). The allegations in El-Hage's motion do not satisfy this standard.
1. Alleged Internet Research
As a preliminary matter, El-Hage and al-'Owhali lack standing to pursue any claim based on a violation of Odeh's constitutional rights. See United States v. Cafaro, 480 F. Supp. 511, 520 (S.D.N.Y. 1979) (holding that "[one defendant] has no standing to assert a violation of [a co-defendant's] constitutional rights"). Odeh is the only person who may seek relief for any alleged violation of his rights. See id.
Odeh's claim is based on a single sentence from the Weiser article which states: "One juror used the Internet at home to research a difficult legal concept concerning the fourth defendant, Mohammed Sadiq Odeh." This single sentence is not the type of "clear, strong and incontrovertible evidence" that requires a hearing. The sentence is vague; it does not identify the issue that was allegedly researched or the juror who purportedly conducted the research. Furthermore, the report does not claim that the "research" was communicated to the rest of the jury. This single sentence, an unsworn snippet of hearsay within a newspaper article, is far less substantial than the sworn affidavits present in cases where evidentiary hearings have been ordered. See, e.g., Ianiello, 866 F.2d at 543.
In sum, Odeh's claim rests on a "frail and ambiguous" statement — one made almost as an aside in a news story. See King, 576 F.2d at 438; see also Machibroda v. United States, 368 U.S. 487, 496 (1962). Odeh's claim falls far short of presenting "specific and detailed factual assertions" that might require a hearing. Id. Such speculation simply does not warrant hauling the jurors back to court over two years after the verdict was rendered.
Furthermore, the defendants' assertion that the alleged Internet research "raises serious questions about the scope of the jurors' affirmative access to extrinsic evidence and other materials and information" and their corresponding request for a wide-ranging hearing "on the scope and depth of the jurors' (affirmative and passive) exposure to and consideration of extrinsic evidence during the trial and deliberations in this case" are wholly inappropriate. (El-Hage Mem. in Supp. at 12.) The defendants seek nothing less than a generalized fishing expedition into what the jury might have seen and considered in its deliberations. Granting this request would be unprecedented. The Court of Appeals and the trial courts of this Circuit have consistently refused to allow such fishing expeditions and I decline the invitation to conduct one here. See, e.g., Ianniello, 866 F.2d at 543 ("This court has consistently refused to allow a defendant to investigate jurors merely to conduct a fishing expedition." (internal quotation marks omitted)).
2. Alleged Knowledge of Defendants' Shackles
Throughout the trial, El-Hage and the other defendants wore leg shackles. El-Hage and the Government agree that Judge Sand took extraordinary precautions to keep these restraints hidden from the jury. The defendants wore no handcuffs. Their leg shackles were taped to reduce any noise and were hidden from jurors' view by an apron placed on the defense table. Additionally, the defendants were always seated at the defense table before the jury entered the courtroom and only Judge Sand was permitted to stand when the jury entered or left. In sum, Judge Sand took all reasonable precautions to ensure that the defendants were not "parad[ed] . . . before the jury in shackles." Davidson v. Riley, 44 F.3d 1118, 1124 (2d Cir. 1995).
I have no doubt that the use of leg shackles was appropriate, not only because of the specific charges against the defendants, but also in light of the June 1999 courtroom incident and the November 2000 attack on a guard at the MCC, discussedinfra.
Despite these precautions, the Weiser article asserts (in a single sentence, without further elaboration) that "[a] number of jurors also became aware that the accused were in leg shackles." El-Hage seizes on this reference and argues that this "awareness" "was sufficient to prejudice Mr. El-Hage and his co-defendants beyond repair." (El-Hage Mem. in Supp. at 7.) I cannot agree. Although the Second Circuit has not yet ruled on whether jurors' inadvertent sightings of shackled defendants are presumptively prejudicial, cases in other circuits have held that defendants must show specific prejudice from such sightings before being entitled to relief. I find these cases persuasive.
Harrell v. Israel, 672 F.2d 632 (7th Cir. 1982), is particularly analogous. In Harrell a state prisoner filed ahabeas corpus petition claiming he was prejudiced when he and his witness were required to wear leg irons throughout the prisoner's trial on charges of assaulting a prison guard. Id. "Before the trial began, the state trial judge, believing security to be of genuine concern, ordered that the leg irons which [petitioner] and his witness had worn while being transported from the prison would remain on them during trial."Id. at 634. "To guard against possible prejudice, the trial judge also ordered that certain precautions be taken so that the jury would not be allowed to focus on the leg irons . . . the jury was not to be brought into the courtroom until [petitioner] was seated at counsel table where the leg irons could not be seen." Id. Additionally, "when [petitioner] or his inmate witness was to testify, arrangements were made so that they would be seated in and leave the witness box outside the presence of the jury." Id. The Seventh Circuit noted that "[d]espite these precautions, . . . it may have been possible for a few of the jurors to have seen that [petitioner] and his witness were wearing leg irons." Id.
In rejecting petitioner's claim of prejudice in Harrell, the Court of Appeals noted that "this case differs from previous decisions involving the use of physical restraints in that here the trial judge made every effort and, insofar as the record shows, was successful, at least for the most part, in preventing the jury from becoming aware of the restraints." Id. The court then concluded that "the steps taken by [the trial judge] to hide the leg irons from the jury's view adequately protected petitioner from the possibility of prejudice." Id. at 637. I find that conclusion equally appropriate here.
As the district court initially addressing the habeas corpus petition in Harrell noted:
To state, as petitioner does, that he was "shackled in leg irons" conjures up images of dungeons, sounds of chains rattling on the courtroom floor and legs dragging as petitioner approaches the witness stand. When the record is viewed, however, it is clear those images must be erased. The trial judge ordered that [petitioner and his witness] would wear leg irons, but that all possible precautions would be taken to prevent the jury from focusing on the leg irons. He also ordered that neither petitioner nor his witness would wear handcuffs.Id. Like the courtroom in Harrell, the courtroom in this case was no dungeon; it was not filled with sounds of clanking chains reminiscent of a visit from the ghost of Jacob Marley. My review of the record does not reveal any prejudice to El-Hage or the other defendants. Thus, even assuming the single sentence from the Weiser article is accurate, and some jurors "became aware" of the restraints, because El-Hage and the other defendants have not demonstrated any prejudice resulting from this awareness, they are not entitled to relief. See United States v. Rutledge, 40 F.3d 879, 884 (7th Cir. 1994), rev'd on other grounds by 517 U.S. 292 (1996).
3. Alleged Penalty-Phase Consultation with Clergy
The Weiser article finally asserts that "two jurors [sought] religious guidance as they struggled to weigh factors for or against execution for Mr. al-'Owhali." Neither El-Hage nor Odeh has standing to raise a claim regarding this alleged misconduct as neither of them was eligible for the death penalty. See Cafaro, 480 F. Supp. at 520. Even assuming that the Weiser article's allegation is true, only al-'Owhali's rights are implicated. Al-'Owhali, however, is not entitled to any relief. Both al-'Owhali and K.K. Mohamed (the only other death-penalty eligible defendant) faced only two potential outcomes during the penalty phase. The jury could have sentenced them to death, or spared their lives. Al-`Owhali and K.K. Mohamed both received the most favorable outcomes possible — they were not sentenced to death. Neither was prejudiced by any extrinsic evidence brought before the jury during the penalty phase.
B. The Government's Alleged Use of an Informant
El-Hage contends that the Government used an informant (the "informant") in his adjoining cell for the purpose of eliciting information from him. El-Hage claims that this action violated: (1) his Sixth Amendment right to counsel; and (2) his Fifth Amendment due process rights. As a result, El-Hage argues that he is entitled to a new trial or, at a minimum, an evidentiary hearing. The Government argues that, even assuming it placed the informant in that position, El-Hage has failed to establish a violation of his Fifth and Sixth Amendment rights. I agree.
Neither Odeh nor al-'Owhali alleges that the Government used an informant to elicit statements from them. Furthermore, neither has standing to assert a claim arising out of the Government's purported use of an informant in El-Hage's adjoining cell. See Cafaro, 480 F. Supp. at 520.
1. Sixth Amendment Claim
El-Hage relies on Massiah v. United States, 377 U.S. 201 (1964), in support of his Sixth Amendment claim. In that case, the Court held that a defendant's Sixth Amendment right to counsel was violated "when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel." Id. at 206. AMassiah claim will fail, however, when a defendant cannot show how he was prejudiced by, or how the Government benefited from, the use of an informant. See United States v. Miller, 116 F.3d 641, 667 (2d Cir. 1997) (denying defendants' Massiah claim because "[w]e see nothing in the record to indicate that the government was benefited or that defendants were prejudiced" by allowing a cooperating witness to remain housed with the defendants and to attend joint strategy meetings with their attorneys); United States v. Ginsberg, 758 F.2d 823, 833 (2d Cir. 1985) ("[T]here can be no violation of the [S]ixth [A]mendment without some communication of valuable information derived from the intrusion to the government: absent such communication, there exists no realistic possibility of either prejudice to the defense or benefit to the government.")
To prevail on his Massiah claim, El-Hage must thus prove that he provided prejudicial information to the informant and that this information was used during the prosecution of his case.See United States v. Cruz, 785 F.2d 399, 408 (2d Cir. 1986) (rejecting defendant's Massiah claim because "[t]he record shows that no incriminating statements elicited at[defendant's] trial were obtained from [the informant]") (emphasis added); United States v. Yousef, No. 93 Cr. 180 (KTD), 1999 WL 714103, at * 5 (S.D.N.Y. Sept. 13, 1999), aff'd, 327 F.3d 56 (2d Cir. 2003) (rejecting defendant's Massiah claim because, inter alia, defendants failed to show that any information was conveyed to the prosecution and "[t]hus, it is impossible for the government to have obtained any benefit at all in the World Trade Center prosecution").
El-Hage has not met his burden. In his motion papers, El-Hage refers to no incriminating statements that he made to the informant, nor to any information that the informant provided to the Government. Thus, El-Hage cannot show how he was prejudiced by the Government's purported use of the alleged informant, or how the Government benefited from it, during the prosecution of his case. Instead, El-Hage merely notes that he spoke with the informant as early as April 2001 about "the Judge's dismissal of charges that I had lied to the FBI." (Drattel Reply Decl. Ex. 1 ¶ 3; see also id. ("[The informant] told me something to the effect of `[h]opefully tomorrow more charges will be dropped. Go get them.'")) El-Hage also recalls "other conversations" with the informant, including "a series of conversations that ended with [the informant] offering to kill Ali Mohamed." (Id. ¶ 4.) These latter conversations cannot give rise to a Massiah violation, however, as they were unrelated to the offenses set forth in this indictment. See Alexander v. Connecticut, 917 F.2d 747, 751 (2d Cir. 1990). Accordingly, El-Hage's demand for a new trial based on the Government's supposed violation of his right to counsel is denied.
El-Hage has not even made the requisite showing for a hearing on his Massiah claim. "A defendant's claim of a Massiah violation does not automatically require an evidentiary hearing."Miller, 116 F.3d at 665. To warrant a hearing, a defendant must "allege facts which, if proven, would constitute a violation under this standard." Ginsberg, 758 F.2d at 833. A hearing may not be granted simply because a defendant assumes that he was prejudiced by, or that the Government unfairly benefited from, the use of an informant. See United States v. Aulicino, 44 F.3d 1102, 1117 (2d Cir. 1995) ("[Defendant's] statement that he had no way of knowing the extent of any prejudice defendants might have suffered, supported only by speculation that they may well have been severely prejudiced was insufficient to require a hearing.") (citation and internal quotation marks omitted). Because El-Hage failed to allege facts that, if proven, would constitute a Massiah violation, there is absolutely no need to have a hearing on this matter.
Having reviewed the Government's submissions on this claim (including the 02/10/03 sealed ex parte affirmation of Karl Metzner), I am confident that El-Hage's related discovery requests (see El-Hage Mem. in Supp. at 26-27) would be fruitless. These requests are therefore denied.
2. Fifth Amendment Claim
El-Hage further argues that the Government's purported use of the informant violated his Fifth Amendment due process rights. To prevail on this claim, El-Hage must show that the Government's conduct was "so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." United States v. Russell, 411 U.S. 423, 431-32 (1973); see also United States v. Chin, 934 F.2d 393, 398 (2d Cir. 1991) ("[T]he existence of a due process violation must turn on whether the governmental conduct, standing alone, is so offensive that it `shocks the conscience'. . . .") (citation omitted). This is a heavy burden, as "the requisite level of outrageousness is extremely high." United States v. Bin Laden, No. S(7) 98 Cr. 1023 (LBS), 2001 WL 30061, at * 7 (S.D.N.Y. Jan. 2, 2001). A defendant will rarely succeed on such a claim absent allegations of "coercion or violation of the defendant's person." United States v. Schmidt, 105 F.3d 82, 91 (2d Cir. 1997) (citation omitted). Accordingly, courts "have almost never found such a [ Fifth Amendment] violation." United States v. Berkovich, 168 F.3d 64, 69 (2d Cir. 1999).
This case is no exception, as El-Hage's allegations do not remotely approach the necessary level of outrageous conduct to constitute a due process violation. First, as discussed supra, El-Hage has not demonstrated that the Government used any informant to elicit statements in connection with the prosecution of his case. Second, after being detained, El-Hage engaged in conduct that posed a serious threat to this Court and to the MCC. In June 1999, El-Hage suddenly charged toward Judge Sand during a pretrial proceeding and had to be restrained "by a Deputy United States Marshal a short distance from the judge." (2/27/04 Metzner Aff. ¶ 2.) On another occasion, in November 2000, El-Hage was seen speaking with his codefendant Mamdouh Salim moments before Salim stabbed a corrections officer through the eye with a plastic shank. (See id. ¶ 3.) This blow left the corrections officer permanently disabled — the shank having cut into his brain. See United States v. Salim, No. 01 Cr. 00002 (DAB). Based on these prior actions, the placing of an informant next to El-Hage's cell, assuming this occurred, was not unreasonable, much less outrageous, and did not violate his Fifth Amendment due process rights.
This determination is bolstered by the Government's actions after the Salim stabbing. The Government advised inmates that the "BOP, FBI and the U.S. Marshals Service are hereby authorized to place microphones in the hallways and elsewhere outside the inmate's cell to record any statements made by the inmate to other inmates." (2/27/04 Metzner Aff. ¶ 4.) El-Hage and his codefendants were thus certainly on notice that any conversations they had with other inmates could be monitored. In sum, even if true, El-Hage's allegations do not "shock the conscience" and do not justify a new trial.
In reaching this decision, I took into account the allegations that El-Hage presented to Judge Sand in connection with his motion to dismiss his indictment — all of which he incorporated by reference into his Rule 33 motion. (See El-Hage Mem. in Supp. at 25-26.) Judge Sand also found that these allegations did not amount to a Fifth Amendment violation. See Bin Laden, 2001 WL 30061, at * 5-9.
There is no need to hold a hearing on this matter as El-Hage's factual allegations, even if proven, would not amount to a due process violation. See United States v. LaPorta, 46 F.3d 152, 159 (2d Cir. 1994) ("Nothing . . . requires a district court to conduct a hearing every time a defendant alleges outrageous government misconduct. . . . Without disputed facts, no hearing was necessary."); Bin Laden, 2001 WL 30061, at * 8 (denying request for hearing on Fifth Amendment outrageous conduct claim because "[t]he arguments presented here do not require resolution of substantial factual issues").
C. The Government's Recordings of al-Fadl Interviews
El-Hage also claims that he is entitled to a new trial because the Government failed to disclose (either before or during trial) videotaped interviews with Jamal al-Fadl, the Government's first witness at trial. Al-Fadl's examination lasted the longest of any Government witness, occupying four trial days and covering hundreds of transcript pages. Among other things, al-Fadl testified that he was one of al Qaeda's first members and gave extensive testimony about the early formation and structure of the group. Notably, al-Fadl offered no testimony about the 1998 embassy bombing plots in Kenya and Tanzania and also offered no testimony regarding Odeh, al-`Owhali, or K.K. Mohamed. Al-Fadl did, however, testify about El-Hage.
El-Hage was the only defendant who al-Fadl identified in court. Al-Fadl also described at least one conversation he had with El-Hage regarding al Qaeda. In addition, al-Fadl testified that El-Hage received a salary from al Qaeda and further testified that he trained El-Hage to handle the al Qaeda payroll. Al-Fadl also discussed seeing El-Hage at various al Qaeda facilities and in the company of numerous al Qaeda associates.
In February 2003 (more than fifteen months after the defendants were sentenced), the United States Attorney's Office provided defense counsel with transcripts of twenty-eight hours of videotaped interviews with al-Fadl. These interviews (involving al-Fadl, Federal Bureau of Investigation agents, and Assistant United States Attorneys) were conducted by teleconference while al-Fadl was in the protective custody of the Witness Security Program (a branch of the United States Marshals Service). The Government has represented that a total of seventeen interviews (including twelve before the end of the defendants' trial) were recorded on videotape and later transcribed.
The United States Attorney's Office has represented that it first learned of the tapes' existence in early 2002. The Government has totally failed to give an explanation of how the tapes were made or how they came to be discovered. Instead, it has merely stated that "the videotapes were made pursuant to an unauthorized, independent decision by one or two employees of the Marshals Service." (Gov. Opp'n. Mem. at 38.) The United States Attorney's Office further stated that the Marshals Service provided the tapes "without any explanation as to who had ordered the videotapes to be made and preserved, or why their existence had not been disclosed earlier." Id.
El-Hage argues that the videotaped interviews should have been produced either before or during trial pursuant to the Jencks Act ( 18 U.S.C. § 3500), Brady, 373 U.S. 83, and Giglio v. United States, 405 U.S. 150 (1972). According to El-Hage, the videotapes and transcripts "represent a trove of Brady material with respect to both the substance of offenses charged against Mr. El-Hage, and important impeachment material that was previously unknown and/or unavailable to the defendants." (El-Hage Mem. in Supp. at 17.) Because, in El-Hage's estimation, "al Fadl was not just a critical witness for the government, butthe critical witness," El-Hage argues that the Government's failure to produce the tapes and transcripts requires a new trial. (El-Hage Reply Mem. in Supp. at 9.) Unfortunately, on the current record I can neither grant nor deny El-Hage's motion.
Because al-Fadl offered no testimony regarding Odeh or al-`Owhali, they cannot pursue a claim based on the Government's nondisclosure of the tapes. Accordingly, only El-Hage may proceed with this ground of the Rule 33 motion.
The as-yet-unexplained circumstances surrounding the creation and discovery of the videotapes must be developed before resolving this motion. Among other things, the legal standard governing whether to grant a new trial when the Government fails to produce Jencks Act material varies depending on the Government's state-of-mind. See United States v. Hilton, 521 F.2d 164, 166 (2d Cir. 1975). "If the government deliberately suppresses evidence or ignores evidence of such high value that it could not have escaped its attention, a new trial is warranted if the evidence is merely material or favorable to the defense." Id. (emphasis added). Where the Government's failure to disclose, however, is inadvertent, "a new trial is required only if there is a significant chance that [the undisclosed material], developed by skilled counsel, could have induced a reasonable doubt in the minds of enough jurors to avoid a conviction." Id. (emphasis added); see also United States v. Jackson, 345 F.3d 59, 77 (2d Cir. 2003) ("Put another way, the [inadvertent] failure to disclose may be disregarded if there is no reasonable probability that had the evidence been disclosed, the result would have been different.") (quotingUnited States v. Gonzalez, 110 F.3d 936, 943 (2d Cir. 1997)).
Simply put, where the evidence has been suppressed intentionally the test is just shy of a per se violation requiring a new trial. See Hilton, 521 F.2d at 167 (holding that there is a "prophylactic rule requiring that a new trial be granted in cases of deliberate nondisclosure").
In light of these competing standards, certain unanswered questions are keenly important. These questions include: (1) who ordered the recording of the interviews; (2) who authorized payment and paid for the recordings; (3) who operated the recording equipment; (4) who had custody of the tapes after they were made; and (5) how were the tapes "discovered" after the trial. I simply cannot decide El-Hage's motion without answers to these questions and a full explanation of how and why the tapes were made, as well as why they were not produced earlier.
Further, despite the United States Attorney's Office's arguments to the contrary, at this time, it seems to me that the conduct of the Marshals Service should presumptively be attributed to the prosecution team. The Marshals Service, like the United States Attorney's Office, is a branch of the United States Department of Justice. Indeed, the evidence I have seen thus far suggests that the Marshals Service, and particularly the Witness Security Program agents who facilitated the prosecutors' interviews with al-Fadl, acted as agents of the prosecutor's office. However, I have not yet seen conclusive evidence on this point. II. Request to Reopen El-Hage's Motion to Suppress
The parties are directed to present evidence and argument on this issue at the hearing to be scheduled infra. See Hilton, 521 F.2d at 167 (noting that where a defendant alleges a Jencks Act violation "the facts surrounding the nondisclosure [must] be developed in an adversarial context").
Before trial El-Hage sought to suppress wiretap evidence from two different sources. First, he sought suppression of all fruits of electronic surveillance conducted pursuant to the Foreign Intelligence Surveillance Act ("FISA") during August and September 1998. See Bin Laden, 2001 WL 30061, at *5. El-Hage withdrew his motion with respect to these materials in light of the Government's assurances that it would not offer any evidence from the FISA-authorized surveillance during its case-in-chief.See id.
Second, El-Hage sought to suppress fruits of warrantless electronic surveillance of telephones he used in Kenya during 1996-97 as well as evidence seized during a 1997 warrantless search of his residence in Kenya ("Second Suppression Motion").See United States v. Bin Laden, 126 F. Supp. 2d 264 (S.D.N.Y. 2000). Judge Sand denied the Second Suppression Motion without a hearing. See id. In so doing, Judge Sand "adopt[ed] the foreign intelligence exception to the [ Fourth Amendment] warrant requirement" and held that the exception applied to the searches in question because, inter alia, "the purpose, throughout the entire electronic surveillance of El-Hage [in Kenya during 1996-97] and during the physical search of his Nairobi residence, was primarily the collection of foreign intelligence information about the activities of Usama Bin Laden and al Qaeda." Id. at 277-78. That conclusion was, "in part, dependent upon the Government's classified submissions." Id.
El-Hage now argues that information published in the July 24, 2003 Report of the United States Select Committee on Intelligence and the United States House Permanent Select Committee on Intelligence on the Joint Inquiry Into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001 ("Joint Inquiry Report") warrants reopening the Second Suppression Motion. El-Hage claims the Joint Inquiry Report undermines Judge Sand's ruling and requires a hearing to re-determine: (1) the primary purpose of the surveillance of El-Hage in Kenya; and (2) whether the Government acted in good faith in not seeking the Attorney General's approval prior to initiating that surveillance operation. I disagree.
This request involves only El-Hage, as Odeh and al-`Owhali lack standing to seek suppression of materials allegedly unconstitutionally seized from El-Hage. See United States v. Padilla, 508 U.S. 77, 81 (1993).
The question of whether to reopen a suppression hearing is committed to the discretion of the district court. See United States v. Tzakis, 736 F.2d 867, 872 (2d Cir. 1984). A motion will not be reopened unless the defendant brings forth "significant, new factual matters" that are "material." Id.;see also United States v. Perez, No. 01 CR 848 (SWK), 2002 WL 1835601, at *1 (S.D.N.Y. Aug. 8, 2002). El-Hage's motion falls short of this standard.
El-Hage bases his argument on a portion of the Joint Inquiry report addressing certain mistakes in FISA applications for electronic surveillance (allegedly including the FISA applications for the August-September 1998 surveillance of El-Hage). El-Hage presumes Judge Sand was unaware of these mistakes in the FISA applications at the time he denied the Second Motion to Suppress and further argues that the FISA mistakes indicate that the Government's primary purpose during the 1996-97 surveillance of El-Hage was the acquisition of evidence for a criminal prosecution, rather than the gathering of intelligence. The presumption is wrong and the argument is without merit.
After reviewing, inter alia, Judge Sand's opinion, the classified appendices thereto, the excerpts provided by El-Hage of his memo supporting the suppression motion, a portion of the Government's classified submissions in opposition to the suppression motion, and the relevant portions of the Joint Inquiry Report, it is clear to me that Judge Sand knew about the mistakes in various FISA applications when he denied El-Hage's Second Suppression Motion. Thus, the information in the Joint Inquiry report is not a "new factual matter" requiring a hearing.Perez, 2002 WL 1835601 at *1. Moreover, because the motion El-Hage seeks to reopen does not involve evidence gathered pursuant to a FISA warrant, any mistakes in FISA applications are at best tangential and at worst totally irrelevant. In any event, the FISA application mistakes El-Hage relies upon are neither "significant" nor "material" to the suppression of the evidence gathered in Kenya in 1996-97 and they do not warrant revisiting Judge Sand's decision. See id. III. Requests for Discovery
El-Hage's discovery requests for materials related to FISA applications, the FBI's Radical Fundamentalism Unit, and other areas allegedly related to the question of the Government's primary purpose or good faith in the 1996-97 wiretaps and search of El-Hage's home in Kenya are, accordingly, denied.
In addition to his foregoing requests, El-Hage makes a variety of discovery demands purportedly related to his Rule 33 motion, some of which I have already ruled on and need not address here. These remaining requests can be divided into two general categories: (1) access to certain supposed al Qaeda members who are allegedly being held in United States custody; and (2) disclosure of various other documents and information. As set forth below, these discovery requests are denied.
A. Request for Access to Purported al Qaeda Detainees
Referring to snippets of various media and government reports, El-Hage claims that Khalid Sheikh Mohamed ("KSM"), abd al-Rahim al-Nashiri ("Nashiri"), and Suleiman Abdalla Salim Hemed ("Hemed") are being held in United States custody. (See El-Hage Mem in Supp. at 30; El-Hage Reply Mem. in Supp. at 24.) El-Hage states that KSM "could" provide, or perhaps already has provided, information concerning El-Hage's lack of involvement in the charged conspiracies and his lack of involvement in the embassy bombings. (See El-Hage Mem. in Supp. at 30.) El-Hage implies that Nashiri and Hemed could provide such information as well. (See El-Hage Reply Mem. in Supp. at 24.)
Citing his Fifth and Sixth Amendment rights and the Classified Information Procedures Act ("CIPA"), El-Hage seeks access to these individuals, claiming that any information he obtains might warrant dismissal of the indictment, a new trial, or possibly a re-sentencing. (See El-Hage Mem. in Supp. at 32.) The Government argues that, even assuming these individuals have been detained, El-Hage has failed to establish that they would provide material, favorable, and non-cumulative evidence on his behalf. (See Gov. Opp'n. Mem. at 98.) I agree and therefore deny his request.
"The Federal Rules of Criminal Procedure do not specifically provide for discovery procedure in aid of motions for a new trial pursuant to Rule 33." Yousef, 1999 WL 714103, at * 4. Accordingly, "the decision of whether to permit discovery and conduct an evidentiary hearing remains within the sound discretion of the trial court." United States v. Salameh, 54 F. Supp. 2d 236, 248 (S.D.N.Y. 1999). Trial courts may fashion appropriate discovery procedures "by analogy to [Federal Rule of Criminal Procedure] 16, or otherwise." Yousef, 1999 WL 714103, at * 4.
In considering El-Hage's request for access to these individuals, I rely on cases analyzing a defendant's Sixth Amendment right to compulsory process for obtaining witnesses in his favor. Cf. United States v. Moussaoui, 365 F.3d 292, 307 (4th Cir. 2004) (evaluating defendant's demand for pretrial access to Government detainees under the Sixth Amendment compulsory process clause), amended by 382 F.3d 453 (4th Cir. 2004); United States v. Sattar, 314 F. Supp. 2d 279, 319-20 (S.D.N.Y. 2004) (same). The Sixth Amendment "does not confer on the defendant an absolute right to compel the presence of any witnesses the defendant may choose." Sattar, 314 F. Supp. 2d at 319. Rather, a criminal defendant has a constitutional right to compel the presence of witnesses "in his favor." U.S. Const. amend. VI. Thus, to compel the presence of a witness under the Sixth Amendment, a defendant must show that the witness will have information that is material and favorable to his defense, and not merely cumulative of the testimony of available witnesses.See Ginsberg, 758 F.2d at 831.
While El-Hage also cites the Fifth Amendment in support of his request for access to purported al Qaeda detainees, "at least the same materiality requirement obtains with respect to a [ Fifth Amendment] due process claim" as to a Sixth Amendment compulsory process claim. United States v. Valenzuela-Bernal, 458 U.S. 858, 872 (1982). El-Hage also cites CIPA in support of his request for access to these individuals. This statute, however, sets forth the procedures governing disclosure of classified information and does not establish the standard that a defendant must meet in order to obtain access to a Government witness.
In this context, materiality is not established by merely showing that a witness "was a participant in and witness to the crime charged." United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988). Rather, evidence is material when there is a "reasonable probability" that its disclosure to the defense would change the result of the proceeding. United States v. Bagley, 473 U.S. 667, 682 (1985). Where, as here, a defendant never had direct access to the witness, he may establish materiality with a less specific showing. See Valenzuela-Bernal, 458 U.S. at 870. A defendant may, for example, satisfy this requirement by disclosing "the events to which a witness might testify, and the relevance of those events to the crime charged." Id. at 871.
The defendant must, however, at least make some "plausible showing" of the materiality and favorability of the witness's testimony. Valenzuela-Bernal, 458 U.S. at 867 (emphasis added). Mere speculation or conjecture will not suffice. See Ginsberg, 758 F.2d at 831 (holding that a defendant must "show some reasonable basis to believe that the desired testimony would be both material and helpful to the defense") (emphasis added); see also United States v. Agurs, 427 U.S. 97, 109-110 (1976) ("The mere possibility that an item of undisclosed information might have helped the defense . . . does not establish `materiality' in the constitutional sense.") (emphasis added).
El-Hage has not come close to meeting this burden. In support of his motion, El-Hage refers to press and government reports that allude to the supposed roles of KSM, Nashiri, and Hemed in certain al Qaeda activities, including the embassy bombings. (See, e.g., Joint Report, at 31 (concluding that KSM "might have been involved in the East Africa Embassy bombings"); Drattel Reply Decl. Ex. 5 (noting that Nashiri is "suspected" of participating in the embassy bombings); Drattel Reply Decl. Ex. 8 (stating that Hemed participated in the embassy bombings and provided "useful" information about the attacks.)) None of these reports, however, provide any indication that KSM, Nashiri, or Hemed would, or could, provide material and favorable testimony concerning El-Hage. Even El-Hage concedes this lackluster showing. (See Def. Reply Mem. at 23 (noting that El-Hage's citations to press reports are "all that he can possibly accumulate" concerning the supposed materiality of KSM's testimony.))
El-Hage thus predicates his request for access to the purported al Qaeda detainees on the possibility that they have material information that is favorable to his case (See Drattel Decl. ¶ 116 ("[I]t is clear that KSM may have direct exculpatory information about Mr. El-Hage and his lack of involvement in the Embassy bombings, and/or the charged conspiracies as a whole.") (emphasis added)). Such speculative assertions, however, do not establish a Sixth Amendment compulsory process right to a witness. See Sattar, 314 F. Supp. 2d at 320 (holding that defendants could not access a purported Government detainee based on "conclusory" assertions concerning the materiality of his testimony); United States v. Moussaoui, No. CR 01-455-A, 2003 WL 21263699, at * 4 (E.D. Va. March 10, 2003) (denying defendant access to certain Government detainees because "the defense has not . . . made sufficient showings regarding the materiality and favorability of any testimony from" them). El-Hage is not entitled to post-trial access to these individuals based merely on his conjecture and surmise.
El-Hage relies heavily on Moussaoui, 365 F.3d 292, in claiming an entitlement to interview the purported al Qaeda members. While the Fourth Circuit upheld the trial court's decision to allow the defendant pretrial access to certain detainees, it specifically found that those detainees could provide material evidence on the defendant's behalf. See id. at 309-310; Moussaoui, 382 F.3d at 473-74. As noted supra, however, the trial court refused to grant the defendant access to those detainees who were not shown to have information that was material to the defendant. See Moussaoui, 2003 WL 21263699, at * 4.
Because El-Hage has failed to show that KSM, Nashiri, or Hemed could provide material information on his behalf, it is unnecessary to balance his compulsory process and due process rights against the national security interests set forth by the Government.
To hold otherwise would arguably provide any defendant convicted of a crime relating to al Qaeda with the constitutional right to question any al Qaeda detainee, as such a detainee "might" have exculpatory information. There is no basis in law for such a right, which would undoubtedly prolong litigation, threaten national security, and thwart society's interest in the finality of criminal convictions. Importantly, "[w]hile a defendant should be afforded the full benefit of [a motion for a new trial], courts should be on the alert to see that the privilege of its use is not abused." United States v. Johnson, 327 U.S. 106, 113 (1945).
B. Remaining Discovery Requests
El-Hage also seeks a variety of documents and information that he apparently contends are relevant to his motion for a new trial. El-Hage claims he is entitled to this information pursuant to Brady, 373 U.S. 83. (See Drattel Decl. ¶ 3.) Brady, however, is not a discovery tool and offers no support for El-Hage's demands. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977) ("There is no general constitutional right to discovery in a criminal case, and Brady did not create one. . . ."); United States v. Giffen, No. S1 03 CR. 404 (WHP), 2004 WL 1475499, at * 3 (S.D.N.Y. July 2, 2004) ("[T]he prosecutor is not required to conduct a separate investigation for the purpose of responding to a defendant's discovery requests."). Rather, Brady imposes specific disclosure obligations on the Government "to ensure that a miscarriage of justice does not occur." Bagley, 473 U.S. at 675. These obligations require the prosecution to disclose evidence, in its possession or reasonably available to it, that "is both favorable to the accused and material either to guilt or to punishment."Id. at 674 (citation and internal quotations omitted).
In addition to requesting any exculpatory information pertaining to his case, El-Hage requests, inter alia, any and all information related to: al Qaeda's dissemination of plans for major terrorist plots; one of El-Hage's former business associates; bayats; al Qaeda membership lists; al Qaeda's involvement in Baku, Azerbaijan; El-Hage's involvement in international Muslim causes in locations and against governments other than the United States; El-Hage's and al Qaeda's support for the Taliban in the 1990s; El-Hage's engagement in legitimate business activities on behalf of Usama bin Laden from 1994-1997; and El-Hage's engagement in legitimate fundraising activities for Help Africa People. (See Drattel Decl. ¶ 109; Drattel Decl. Ex. 25.)
In making these requests, El-Hage has failed to identify anyBrady material that the Government has not disclosed. Instead, El-Hage makes a variety of boundless requests, which he apparently believes might yield Brady fruit. This is not, however, what Brady prescribes. "The court is not required to authorize fact-finding missions to find new evidence when the defense has completely failed in its burden to demonstrate the efficacy of such a mission." Salameh, 54 F. Supp. 2d at 304. Such is the case here. Through these remaining discovery requests, El-Hage asks me to authorize and supervise a roving fishing expedition. I decline this invitation and deny his remaining discovery requests.
Obviously, this ruling does not absolve the Government of itsBrady obligations. The Government concedes that "its obligation to provide exculpatory materials under Brady continues past conviction." (Gov. Opp'n. Mem. at 145.) The Government represents that it "has complied, and will continue to comply, with its Brady obligation regarding those materials that come into its possession." (Id.) Courts in this Circuit have held that such representations, in pretrial settings, satisfy the Government's Brady obligations. See, e.g., United States v. Numisgroup Intern. Corp., 128 F. Supp. 2d 136, 150 (E.D.N.Y. 2001) ("In the absence of a particularized showing by the defense that certain materials covered by Brady are being withheld, the Court accepts the Government's good faith assertion as sufficient."). I find the Government's statement regarding its obligations under Brady equally valid in this post-trial setting. IV. Conclusion
Counsel for El-Hage and the Government are to appear at 2:00 p.m. on February 10, 2005. At that time I will conduct a scheduling conference to set a hearing on the issue of the al-Fadl videotapes and the question of whether the Marshals Service's conduct should be imputed to the prosecutors. Pending that hearing I reserve my decision on that ground of the Rule 33 Motion and the discovery requests related thereto, including requests related to statements by Mohamed Suleiman al-Nalfi.
In all other respects the Rule 33 Motion is DENIED. The request to reopen El-Hage's Motion to Suppress is likewise DENIED. All remaining requests for discovery and other relief, including requests for access to KSM and other purported al Qaeda associates, are DENIED.