1994 WL 16181176 (2nd Cir.)
For opinion see 152 F.3d 88, 84 F.3d 47
United States Court of Appeals, Second Circuit.
UNITED STATES OF AMERICA, Appellee, v. Mohammed A SALAMEH, Nidal
Ayyad, Mahmoud Abouhalima, also known as Mahmoud Abu Halima, Ahmad Mohammad Ajaj,
also known as Khurram Kham, Defendants-Appellants, Ramzi Ahmed Yousef, Bilal
Alkaisi, also known as Bilal Elgisi, Aboul Rahman Yasin, also known as Aboud,
Defendants.
Nos. 94-1312, 94-1312L, 94-1313, 94-1314, 94-1315.
1994.
An Appeal from A Judgment of the United States District Court for
the Southern District of New York
Brief for Appellant Mahmoud Abouhalima
Glenn A. Garber, of Counsel.
Lawrence Mark Stern, 100 Hudson Street, #6A, New York, NY 10013,
212-925- 6863, Attorney for Mahmoud Abouhalima.
*i TABLE OF CONTENTS
TABLE OF AUTHORITIES ... i-xii
STATEMENT PURSUANT TO RULE 28(a) ... 1
PRELIMINARY STATEMENT ... 1
ISSUES PRESENTED ... 1
STATEMENT OF FACTS ... 4
I. The Prosecution's Case: Circumstantial Evidence of Association;
No Knowledge or Intent to Bomb World Trade Center; Denial of Voluntariness
Hearing; Suggested In-Court Identification; Irrelevant Evidence; Opinions About
A Bomb and It's Container ... 4
II. The Prosecution's Opening and Summations: Misrepresentation of
Fact, Shifting the Burden, supplying Testimony ... 23
III. The Charge: Circumstantial Evidence Presumes guilt; Defense
Counsel Singled Out by Name for Criticism; "Piles of Stuff" from
Appellant's Apartment Offered in Evidence by the Prosecution; Knowledge and
Intent to Bomb World Trade Center Not Necessary for Guilt ... 24
IV. The Compounding of Irrelevant Facts to Give the Appearance of
a Case ... 27
V. The Concealments and Misrepresentations of Facts About
Government Informants and Preclusion of Cross-Examination Into the Motives and
Biases of Government Witnesses ... 30
VI. In-Court Suggestion that the Witness Moosh Identify Apellant
Instead of a Juror ... 34
VII. The Prosecution's In-Court and Out-of-Court Coaching of the
Witness Igiri to Identify Salameh in the Ryder Van, and the Court's
Minimization of Igiri's Lie ... 37
VIII. The Parade of Victims and Autopsy Photographs, Hate
Literature About Killing Jews and Christians and Other Prejudicial Evidence ...
39
*ii IX. Jury Selection: Islamic Bias Voir Dire Denied Despite
Prosecution Attribution to Defendants of Literature Advocating Religious Wars
in the Name of Islam ... 44
X. The Denial of Severance: The Precht Summation Conceding Ramzi
Yousef's Plan to Bonb ... 45
XI. Jury Deliberations: Court Excision of Relevant Defense
Testimony from Read-Backs Requested by the Jury ... 46
XII. The Sentence: Denial of Counsel of Choice and Effective
Assistance of Appointed counsel; Illegal Sentence and Appearance of Bias of the
Court ... 48
SUMMARY OF ARGUMENT ... 53
ARGUMENT ... 57
POINT I
THE EVIDENCE AGAINST APPELLANT WAS IRRELEVANT, PREJUDICIAL,
VIOLATIVE OF DUE PROCESS, RIGHTS TO COUNSEL AND AGAINST SELF-INCRIMINATION, AND
THE RULES OF EVIDENCE, AND INSUFFICIENT AS A MATTER OF LAW ... 57
POINT II
THE PROSECUTION'S MISREPRESENTATIONS IN OPENING AND SUMMATION,
COMPOUNDED BY THE COURT'S DELETIONS OF RELEVANT TESTIMONY FROM READ-BACKS
REQUESTED BY THE JURY, AND THE PROSECUTOR'S TESTIMONY AND VOUCHING, INFLAMING
THE JURY WITH THE FEAR OF TERRORISM, AND SHIFTING THE BURDEN OF PROOF DEPRIVED
APPELLANT OF A FAIR TRIAL ... 73
POINT III
THE COURT'S CHARGES THAT CIRCUMSTANTIAL EVIDENCE IS WHAT EVERYONE
KNOWS ABOUT A BULLY, THAT DEFENSE COUNSEL'S ARGUMENTS WERE WRONG AND THAT
"PILES OF STUFF" NOT IN EVIDENCE WERE FOUND IN APPELLANT'S APARTMENT,
AND THAT CONSPIRACY TO BOMB THE WORLD TRADE CENTER DID NOT REQUIRE SPECIFIC
INTENT AND KNOWLEDGE DEPRIVED APPELLANT OF THE CONSTITUTIONAL RIGHTS TO FAIR
TRIAL AND DUE PROCESS OF LAW, AND TO GRAND JURY INDICTMENT AND FAIR NOTICE OF
THE CHARGES AGAINST HIM ... 77
A. Circumstantial Evidence: What Everyone Knows About a Bully ...
78
*iii B. The Court's Charge That Defense Counsel's Arguments Were
Wrong and That There Were "Piles of Stuff" Found in Appellant's
Apartment But Not Introduced in Evidence ... 80
C. The Court's Charge That Conspiracy to Bomb the World Trade
Center Does Not Require Specific Intent and Knowledge ... 82
POINT IV
THE TRIAL COURT'S EX PARTE AGREEMENT WITH THE PROSECUTION TO
CONCEAL THE EVIDENCE, ITS MISREPRESENTATION TO DEFENSE COUNSEL, AND THE
PROSECUTOR'S MISREPRESENTATION TO THE JURY THAT A WITNESS WAS NOT A PAID
GOVERNMENT INFORMANT ON THIS CASE, THE COURT'S CONCEALMENT OF OTHER RELEVANT
FACTS ABOUT PROSECUTION WITNESSES, AND ITS PRECLUSIONS OF CROSS-EXAMINATION
CONSTITUTED REVERSIBLE ERROR IN VIOLATION OF APPELLANT'S FIFTH AND SIXTH
AMENDMENT RIGHTS TO EFFECTIVE COUNSEL, DUE PROCESS, AND CROSS-EXAMINATION, AND
HIS DUE PROCESS RIGHT TO AN IMPARTIAL JUDGE ... 88
POINT V
THE PROSECUTOR'S IN-COURT PROMPTING OF A WITNESS WITH A SUGGESTIVE
PHOTOSPREAD TO IDENTIFY APPELLANT INSTEAD OF A JUROR DENIED APPELLANT A FAIR
TRIAL AND DUE PROCESS OF LAW ... 95
POINT VI
THE PROSECUTOR'S COERCIVE QUESTIONING OF HIS WITNESS TO OBTAIN
DESIRED ANSWERS, THE COURT'S INTERRUPTION OF CROSS-EXAMINATION ON THE SUBJECT
OF THE WITNESS' RESULTANT LIE, AND THE COURT'S INSTRUCTIONS AMELIORATING THE
INCIDENT AND SUPPLYING NEUTRALIZING TESTIMONY, VIOLATED THE RULES OF EVIDENCE
AND DEPRIVED APPELLANT OF THE CONSTITUTIONAL RIGHTS TO CROSS-EXAMINATION, FAIR
TRIAL, AND DUE PROCESS OF LAW ... 102
POINT VII
ANGER, FEAR, AND HATRED AGAINST APPELLANT WERE INSTILLED IN THE
JURY BY DAYS OF VICTIMS TESTIMONY GRUESOME AUTOPSY PHOTOS, MEDICAL EXAMINER
TESTIMONY, AND ORAL RECITATIONS OF HATE LITERATURE IRRELEVANT TO GUILT AND
DENYING APPELLANT A FAIR TRIAL AND DUE PROCESS OF LAW ... 107
*iv POINT VIII
THE COURT'S REFUSAL TO CONDUCT THE REQUESTED PROBING VOIR DIRE OF
THE JURY ON BIAS AGAINST MUSLIMS AND REACTION TO HATE LITERATURE, WHERE THE
CRIME CHARGED WAS VIOLENT, THE APPELLANT WAS A MEMBER OF A RACIAL, ETHNIC AND
RELIGIOUS GROUP DIFFERENT THAN THE JURORS, AND THE PROSECUTION PRESENTED
INFLAMMATORY EVIDENCE CONSISTING OF LITERATURE ADVOCATING RELIGIOUS WARS IN THE
NAME OF ISLAM, DENIED APPELLANT THE SIXTH AMENDMENT RIGHT TO AN IMPARTIAL JURY
... 112
POINT IX
APPELLANT'S JOINDER AT A TRIAL WITH ONE CO-DEFENDANT WHOSE LUGGAGE
CONTAINED HATE LITERATURE WHICH WAS INTRODUCED AGAINST APPELLANT AND WITH
ANOTHER DEFENDANT WHO ARGUED THAT AN ASSOCIATE OF APPELLANT'S HAD MASTERMINDED
THE PLOT TO BLOW UP THE WORLD TRADE CENTER DEPRIVED APPELLANT OF A FAIR TRIAL
AND DUE PROCESS OF LAW ... 117
POINT X
APPELLANT WAS DENIED COUNSEL OF CHOICE, EFFECTIVE ASSISTANCE OF
COUNSEL, AND AN IMPARTIAL JUDGE AT SENTENCING, AND THE SENTENCE VIOLATED
STATUTES, GUIDELINES AND THE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND
AGAINST DOUBLE JEOPARDY ... 121
A. Denial of Counsel of Choice ... 122
B. Denial of Effective Assistance of Assigned Counsel ... 125
C. The Sentence in Violation of Double Jeopardy, Due Process,
Statute and Guidelines ... 128
POINT XI
PURSUANT TO RULE 28(i) OF THE FEDERAL RULES OF APPELLATE PROCEDURE,
APPELLANT HEREBY ADOPTS BY REFERENCE AND INCORPORATES HEREIN ALL POINTS AND
ARGUMENTS OF CO-APPELLANTS TO THE EXTENT THEY ARE APPLICABLE TO APPELLANT, AND
NOT INCONSISTENT HEREWITH ... 137
CONCLUSION ... 137
*i TABLE OF AUTHORITIES
Cases:
Alford v. United States, 282 U.S. 687 (1931) ... 93
Anderson v. United States, 417 U.S. 211, 224 (1974) ... 61
Armstrong v. McAipin, 625 F.2d 433, 441 (2d Cir., 1980)(en banc),
vacated on other grounds, 449 U.S. 1106 (1981) ... 125
Brady v. Maryland, 373 U.S. 83 (1963) ... 90, 104
Busic v. United States, 446 U.S. 398 (1980) ... 135
Davis v. Alaska, 415 U.S. 308, 318, (1974) ... 91, 93, 102
Delaware v. Van Arsdall, 475 U.S. (1986) ... 90-91, 94, 102, 105
Direct Sales Co. v. United States, 319 U.S. 703, 711 (1943) ...
61-62
Dunston v. United States, 878 F.2d 648 (2d Cir., 1989) ... 127
Ellis v. City of Chicago, 667 F.2d 606, 612 (7th Cir., 1981) ...
103
Evanston Bank v. Brinks. Inc., 853 F.2d 512 (7th Cir., 1988) ...
68
Francis v. Franklin, 471 U.S. 307, 313 (1985) ... 84
Gradsky v. United States, 373 F.2d 706 (5th Cir., 1967) ... 74
Griffin v. California, 380 U.S. 609 (1965) ... 76
Guidroz v. Lynaugh, 852 F.2d 832 (5th Cir., 1988) ... 74
Haller v. Robbins, 409 F.2d 857, 859 (1st Cir., 1969) ... 90
Henry v. Speckard, 22 F.3d 1209 (2d Cir. 1994) ... 102
Holland v. United States, 348 U.S. 121, 139-140 (1954) ... 79-80
Ianelli v. United States, 420 U.S. 770, 777 n. 10, (1975) ... 83
In Re Abouhalima, et. al, No. 94-3038 ... 123
*ii In Re Grand Jury Subpoena Directing Taylor to Appear and
Testify, 567 F.2d 1183, 1188 (2d Cir., 1977) ... 90
Jackson v. Virginia, 443 U.S. 307, 318 (1979) ... 62
Kotteakos v. United States, 328 U.S. 750, 774-775, 66 S.Ct. 1239,
1252-1253, 90 L.Ed. 1557 (1946) ... 118
Leon v. Kuhlman, 443 F.Supp. 50, 61 (S.D.N.Y. 1977) ... 81
Lewis v. Baker, 526 F.2d 470 (2d Cir., 1975) ... 93
Mann v. Dugger, 817 F.2d 1471 (11th Cir., 1987) ... 81
McConnell v. United States, 393 F.2d 404, 406-07 (5th Cir., 1968)
... 103
Miranda v. Arizona, 384 U.S. 436 (1966) ... 60
Moore v. Illinois, 434 U.S. 220, 229 (1977) ... 97
Neil v. Biggers ... 98-99
Offut v. United States, 348 U.S. 11 (1954) ... 89, 133
Pinkerton v. United States, 328 U.S. 640 (1946) ... 73, 87-88, 119
Ouercia v. United States, 289 U.S. 466, 470 (1933) ... 104
Reutter v. Solem, 888 F.2d 578 (8th Cir., 1989) ... 90
Rosales-Lopez v. United States, 451 U.S. 182 (1981) ... 115, 117
Roviaro v. United States 353 U.S. 53 (1957) ... 90, 93
Rushen v. Spain, 464 U.S. 114 (1983) ... 91
Sandstrom v. Montana, 442 U.S. 510, 520-25 (1979) ... 79
Simmons v. United States, 390 U.S. 377 (1968) ... 96
Solomon v. Smith, 645 F.2d 1179, 1185-86 (2d Cir., 1981) ... 87
Strickland v. Washington, 466 U.S. 668 (1984) ... 102
United States v. Abel, 469 U.S. 45, 50, 51 (1984) ... 91, 102
United States v. Abrams, 539 F. Supp. 378 (S.D.N.Y., 1982) ... 85
United States v. Afjehei, 869 F.2d 670 (2d Cir., 1989) ... 68
*iii United States v. Alexander, 860 F.2d 508 (2d Cir., 1988) ...
127
United States v. Alpert, 28 F.3d 1104 (11th Cir., 1994) ... 135
United States v. Amato, 15 F.3d 230 (2d Cir., 1994) ... 129
United States v. Anderson, 981 F.2d 1560 (10th Cir., 1992) ... 71
United States v. Aponte-Suarez, 905 F.2d 483 (1st Cir., 1990) ...
70
United States v. Archibald, 734 F.2d 938, 940 (2d Cir., 1984) ...
96
United States v. Arefi, 847 F.2d 1003 (2d Cir., 1988) ... 129
United States v. Armone, 363 F.2d 385 (2d Cir., 1966) ... 81
United States v. Arroyo-Angulo, 580 F.2d 1137 (2d Cir., 1978) ...
90
United States v. Bagley, 473 U.S. 667 (1985) ... 104
United States v. Bailey, 975 F.2d 1028 (4th Cir., 1992) ... 136
United States v. Beasley, 2 F.3d 1551 (11th Cir., 1993) ... 76
United States v. Bejasa, 904 F.2d 137 (2d Cir., 1990) ... 81
United States v. Bell, 464 F.2d 667 (2d Cir., 1972) ... 90-91
United States v. Bloom, 237 F.2d 158, 163 (2d Cir., 1956) ... 80
United States v. Borelli, 336 F.2d 376, 384 (2d Cir. 1964) ... 83
United States v. Bortnovsky, 820 F.2d 572 (2d Cir., 1987) ... 85
United States v. Boyce, 797 F.2d 691 (8th Cir. 1985) ... 81
United States v. Cangiano, 491 F.2d 906 (2d Cir., 1974) ... 83
*iv United States v. Carson, 702 F.2d 351, 361 (2d Cir., 1983) ...
61
United States v. Cassamento, 887 F.2d 1141, 1156 (2d Cir., 1989)
... 63
United States v. Clark, 475 F.2d 240 (2d Cir., 1973) ... 78, 84
United States v. Clark, 613 F.2d 391, 405 (2d Cir., 1979) ... 74
United States v. Coleman, 811 F.2d 804 (3d Cir., 1987) ... 70
United States v. Concepcion, 983 F.2d 369, 378-79 (2d Cir., 1992)
... 97, 101-102, 134
United States v. Correa-Vargas, 860 F.2d 35 (2d Cir., 1988) ...
134
United States v. Criollo, 962 F.2d 241 (2d Cir., 1992) ... 75
United States v. Curcio, 694 F.2d 14 (2d Cir., 1982) ... 123-125
United States v. Damsky, 740 F.2d 134, 138 n.3 (2d Cir., 1984) ...
74-75
United States v. Daniels, 558 F.2d 122 (2d Cir., 1977) ... 127
United States v. Davis, 965 F.2d 804 (10th Cir., 1992) ... 72
United States v. DeNoia, 451 F.2d 979, 981 (2d Cir., 1971) ... 71
United States v. Diaz, 797 F.2d 99 (2d Cir., 1986) ... 133
United States v. Diloretto, 888 F.2d 996 (3d Cir., 1989) ... 74
United States v. DiSimone, 560 F.2d 532 (5th Cir., 1981) ... 70
United States v. DeSisto, 289 F.2d 833, 834 (2d Cir., 1961) ...
105
United States v. Dorr, 636 F.2d 117 (5th Cir., 1981) ... 74
United States v. Dove, 916 F.2d 41 (2d Cir., 1990) ... 78
*v United States v. Durham, 319 F.2d 590, 592 (4th Cir., 1963) ...
103
United States v. Edwardo-Franco, 885 F.2d 1002, 1010 (2d Cir., 1989)
... 107, 133
United States v. Edwards, 631 F.2d 1049, 1051 (2d Cir., 1980) ...
108
United States ex. rel. Williams v. Lane, 645 F. Supp. 740 (N.D.
Ill., 1986) ... 76
United States v. Falcone, 311 U.S. 205, 210 (1940) ... 83
United States v. Falley, 489 F.2d 33 (2d Cir., 1973) ... 111
United States v. Fatico, 579 F.2d 707 (2d Cir., 1978) ... 133
United States v. Felix-Jerez, 667 F.2d 1297, 1300 (9th Cir., 1982)
... 96
United States v. Fields, 466 F.2d 119 (2d Cir., 1972) ... 84
United States v. Frasch, 818 F.2d 631 (7th Cir., 1987) ... 115
United States v. Fredericks, 857 F.2d 733 (11th Cir., 1988) ... 64
United States v. Gavira, 740 F.2d 174, 184 (2d Cir., 1984) ... 58,
69, 84
United States v. Geaney, 417 F.2d 1116, 1121 (2d Cir., 1969) ...
66
United States v. Gelb, 944 F.2d 52 (2d Cir., 1991) ... 136
United States v. Giese, 597 F.2d 1170 (9th Cir., 1979) ... 111
United States v. Giglio, 405 U.S. 150 (1972) ... 104
United States v. Gillilan, 288 F.2d 796 (2d Cir., 1961) ... 84
United States v. Gillis, 942 F.2d 707, 709-710 (10th Cir., 1991)
... 116
United States v. Gleason, 616 F.2d 2 (2d Cir., 1979) ... 84
United States v. Glenn, 828 F.2d 855 (1st Cir., 1987) ... 88
United States v. Goldberg, 587 F. Supp. 302, 310 (S.D.N.Y., 1984),
rev'd on other grounds *vi 756 F.2d 949 (2d Cir., 1985) ... 85
United States v. Goldfaden, 959 F.2d 1324 (5th Cir., 1992) ... 106
United States v. Golitschek, 808 F.2d 195 (2d Cir., 1986) ... 107
United States v. Harvey, 991 F.2d 981 (2d Cir., 1993) ... 68, 108,
110
United States v. Harwood, 998 F.2d 91, 95 (2d Cir., 1993) ...
117-118
United States v. Hathaway, 798 F.2d 902, 910 (6th Cir., 1986) ...
87
United States v. Haves, 553 F.2d 824, 827 (2d Cir., 1977) ... 79
United States v. Haynes 16 F.3d 29, 32 (2d Cir., 1994) ... 118
United States v. Hayward, 6 F.3d 1241, 1254-55 (7th Cir., 1993)
... 103
United States v. Helmsley, 941 F.2d 71 (2d Cir., 1991) ... 127
United States v. Hoffman, 964 F.2d 21, 24 (D.C. Cir., 1992) ...
80-81
United States v. Hurley, 746 F.2d 725, 727 (11th Cir., 1984) ...
116
United States v. Jacobson, 112 S.Ct. 1535, 1541 (1992) ... 111
United States v. James, 609 F.2d 36 (2d Cir., 1979) ... 94
United States v. Jones, 900 F.2d 512, 520-21 (2d Cir., 1991) ...
93
United States v. Jones, 30 F.3d 276 (2d Cir., 1994) ... 62
United States v. Johnson, 371 F.2d 800, 807 (3rd Cir., 1967) ...
81
United States v. Johnson, 513 F.2d 819, 821-23 (2d Cir., 1975) ...
63, 66, 68-69
United States v. Johnson, 968 F.2d 768 (8th Cir., 1992) ... 76
*vii United States v. Jones, 30 F.2d 276, 281-282 (2d Cir., 1994)
... 58, 62
United States v. Kahn, 381 F.2d 824 (7th Cir., 1967) ... 86
United States v. Kilpatrick, 821 F.2d 1456 (10th Cir., 1987) ...
86
United States v. Konovsky, 202 F.2d 721 (7th Cir., 1953) ... 108
United States v. Kyles, 40 F.2d 519, 524 (2d Cir., 1994) ... 116
United States v. Lamere, 980 F.2d 506 (8th Cir., 1992) ... 135
United States v. Lane, 883 F.2d 1484, 1499 (10th Cir., 1989) ...
108
United States v. Lanza, 790 F.2d 1015, 1020 (2d Cir. 1986) ... 93
United States v. Lawson, 683 F.2d 688 (2d Cir., 1982) ... 94
United States v. Leonard, 524 F.2d 1076, 1091 (2d Cir., 1975) ...
108
United States v. Lindsay, 985 F.2d 666 (2d Cir., 1993) ... 135
United States v. Maldonado-Rivera, 922 F.2d 934 (2d Cir., 1990)
... 83, 87, 97-99, 101
United States v. Manton, 107 F.2d 834, 839 (2d Cir., 1938) ... 61
United States v. Marchese, 438 F.2d 452 (2d Cir., 1971) ... 71
United States v. Martinez, 667 F.2d 886 (10th Cir., 1981) ... 89
United States v. Mazzilli, 848 F.2d 384 (2d Cir., 1988) ... 104
United States v. McElroy, 910 F.2d 1016 (2d Cir., 1990) ... 75
United States v. McGovern, 499 F.2d 1140, 1142 ... 103
United States v. McKeon, 738 F.2d 26, 30 (2d Cir., 1984) ... 86
*viii United States v. Mescaine-Perez, 849 F.2d 53 (2d Cir., 1988)
... 127
United States v. Mickens, 926 F.2d 1323 (2d Cir., 1991) ... 81
United States v. Millan-Colon, 834 F.Supp. 78 (S.D.N.Y., 1993) ...
126
United States v. Mollica, 849 F.2d 723, 729 (2d Cir., 1988) ... 87
United States v. Monk, 15 F.3d 25 (2d Cir., 1994) ... 134
United States v. Morlong, 531 F.2d 183, 190 (4th Cir., 1975) ...
96
United States v. Mote, 582 F.2d 654, 662 (2d Cir., 1978) ... 90-91
United States v. Nazzaro, 472 F.2d 302, 312 (2d Cir., 1973) ...
81-82, 106
United States v. Nusraty, 867 F.2d 759, 764 (2d Cir., 1989) ...
62, 73
United States v. Palta, 880 F.2d 636 (2d Cir., 1989) ... 127
United States v. Perholtz, 842 F.2d 343 (D.C. Cir., 1988) ... 74
United States v. Pisani, 773 F.2d 397 (2d Cir., 1985) ... 81
United States v. Polland, 994 F.2d 1262 (7th Cir., 1993) ... 135
United States v. Porter, 41 F.3d 68 (2d Cir., 1994) ... 136
United States v. Potamitis, 739 F.2d 784, 790 (2d Cir., 1984) ...
119
United States v. Prescott, 920 F.2d 139 (2d Cir., 1990) ... 127
United States v. Provenzano, 615 F.2d 37 (2d Cir., 1980) ... 84
United States v. Reed, 437 F.2d 57 (2d Cir., 1971) ... 92
United States v. Restrepo, 936 F.2d 661, 667-668 (2d Cir., 1991)
... 134
United States v. Enrique Rivera, 22 F.3d 430 (2d Cir., 1994) ...
135
*ix United States v. George Rivera, 971 F.2d 876 (2d Cir., 1992)
... 135
United States v. Ricardi, 174 F.2d 883, 889 (3rd Cir., 1949) ...
96
United States v. Robin, 545 F.2d 775 (2d Cir., 1976) ... 128
United States v. Robinson, 545 F.2d 301, 305-06 (2d Cir., 1976)
... 79
United States v. Robinson, 560 F.2d 507, 514 (2d Cir., 1977) ...
107
United States v. Robinson, 635 F.2d 981 (2d Cir., 1980) ... 81
United States v. Roldan-Zapata, 916 F.2d 795 (2d Cir., 1990) ...
81
United States v. Romano, 825 F.2d 725 (2d Cir., 1987) ... 129
United States v. Rosa, 11 F.3d, 315, 343 (2d Cir., 1933) ... 106
United States v. Rosenblatt, 554 F.2d 36 (2d Cir., 1977) ... 83-84
United States v. Sarro, 742 F.2d 1286 (11th Cir., 1984) ... 70
United States v. Sacerio, 952 F.2d 860 (5th Cir., 1992) ... 175
United States v. Salameh, 856 F.Supp. 781, 784 (1994) ... 89, 124,
128
United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir., 1973) ...
85
United States v. Salmon, 944 F.2d 1106, 1113 (3rd Cir., 1991) ...
72-3, 88
United States v. Seale, 20 F.3d 1279 (3rd Cir., 1994) ... 136
United States v. Sehnal, 930 F.2d 1420 (9th Cir., 1991) ... 76
United States v. Shaw, 829 F.2d 714 (9th Cir., 1987) ... 74
United States v. Shyllon, 10 F.3d 1 (D.C. Cir., 1993) ... 94, 103
*xUnited States v. Sleight, 808 F.2d 1012 (3rd Cir., 1987) ... 136
United States v. Solivan, 937 F.2d 1146 (6th Cir., 1991) ... 59,
76
United States v. Soto, No. 94-1021, (2d Cir., February 10, 1995)
... 128
United States v. Stevens, 985 F.2d 1175 (2d Cir., 1993) ...
135-136
United States v. Stroud, 893 F.2d 504 (2d Cir., 1990) ... 135
United States v. Studley, No. 1228 (2d Cir., February 13, 1995)
... 132
United States v. Sullivan, 694 F.2d 1348 (2d Cir., 1982) ... 127
United States v. Tarantino, 846 F.2d 1384 (D.C. Cir., 1988) ... 68
United States v. Terry, 702 F.2d 299, 321 (2d Cir., 1983) ... 63
United States v. Terselich, 885 F.2d 1094 (3d Cir., 1989) ... 73
United States v. Thai, 29 F.3d 785, 813 (2d Cir., 1994) ... 108
United States v. Thompson, 37 F.3d 450, 452-54 (9th Cir., 1994)
... 80
United States v. Torkington, 874 F.2d 1441 (11th Cir., 1989) ...
133
United Stetes v. Tortora, 994 F.2d 79 (2d Cir., 1993) ... 136
United States v. Towne, 870 F.2d 880, 886 (2d Cir., 1989) ... 92
United States v. Treadwell, 760 F.2d 327 (D.C. Cir. 1985) ...
84-85
United States v. Tutino, 883 F.2d 1125, 1132 (2d Cir., 1989) ...
119
United States v. Valentine, 820 F.2d 565 (2d Cir., 1987) ... 74
United States v. Villegas, 911 F.2d 623 (11th Cir., 1990) ... 70
*xi United States v. Weiss, 752 F.2d 777, 787 (2d Cir., 1985) ...
87
United States v. Wexler, 838 F.2d 88, 91 (3rd Cir., 1988) ... 64,
73
United States v. Whitehorn, 710 F. Supp. 803, 817 (D.D.C., 1989)
... 86
United States v. Whitworth, 856 F.2d 1268 (9th Cir., 1988) ... 68
United States v. Wong, 40 F.3d 1347 (2d Cir., 1994) ... 135-136
United States v. Zackson, 12 F.3d 1178, 1184 (2d Cir., 1993) ...
96
Webb v. Texas, 409 U.S. 95 (1972) ... 89
Wilson v. United States, 352 F.2d 889, 892 (8th Cir., 1965) ... 81
Zafiro v. United States, 506 U.S. 534, 113 S.Ct. 933, 938, 122
L.Ed.2d 317 (1993) ... 117-120
Statutes:
18 U.S.C. ¤ 371 ... 71
18 U.S.C. ¤ 924(c) ... 134
18 U.S.C. ¤ 3501 ... 60
18 U.S.C. ¤ 3553(a) ... 129
18 U.S.C. ¤ 3579(e)(1) ... 137
18 U.S.C. ¤ 3664 ... 136
Rules:
F.R. Crim. P. 7(f) ... 85
F.R. Crim. P. 14 ... 117
F.R. Crim P.32 ... 127, 129
F.R. Evid. 401 ... 68, 91, 108, 110, 119
F.R. Evid. 403 ... 68, 91, 107-109 111, 119
Fed.R.Evid. 404(b) ... 79
*xii F.R. Evid. 602 ... 68
F.R. Evid. 608 ... 79, 93
F.R. Evid. 611(c) ... 103
F.R. Evid. 609(a) ... 79
F.R. Evid. 701 ... 68
Guidelines:
U.S.S.G. ¤ 2A1.1 and Application Note 1 ... 134
U.S.S.G. 2A1.1 ... 133
U.S.S.G. 2k1.4 ... 133
U.S.S.G. ¤ 3B1.2 ... 134
U.S.S.G. ¤ 3C1.1 ... 135
Constitution: Throughout
Const. Amend. I ... 110, 118
Const. Amend. V ... 60, 75
Const. Amend VI ... 60, 90, 116
Treatises:
Cleary, McCormick On Evidence ¤ 272 (1984) ... 80
1 L. Sand, et al., Modern Federal Jury Instructions -- Criminal,
Paragraph 5.01, Instruction S- ... 79
3 Wigmore on Evidence ¤ 725 (Chadbourn rev. ed. 1970) ... 98
*1 STATEMENT PURSUANT TO RULE 28(a)
PRELIMINARY STATEMENT
This is an appeal from a judgment of the United States District
Court for the Southern District of New York (Duffy, J) rendered May 24, 1994,
convicting appellant, and three co-defendants, Mohammad Salameh, Nidal Ayyad,
and Ahmed Ajaj, after trial by jury, of the crimes of conspiracy to damage
buildings by use of an explosive device (18 U.S.C. ¤ 371), explosive
destruction of property (18 U.S.C. ¤ 844i), explosive destruction of government
property (18 U.S.C. ¤ 844f.), interstate transportation of explosives (18
U.S.C. ¤¤ 33, 34), assault upon a federal officer (18 U.S.C. ¤ 111), and using
a destructive device during a crime of violence (18 U.S.C. ¤ 924(c), and
sentencing them each to a cumulative total sentence of 240 years imprisonment
without parole (180 years on the first six of the offenses above, and 60 years
additional for two counts of the last above enumerated offense), a supervised
release term of five years, a fine of $250,000, and restitution of
$250,000,000. Jurisdiction in this Court is pursuant to 18 U.S.C. ¤ 3742(a)(2)
and 28 U.S.C. ¤ 1291, in the District Court pursuant to 18 U.S.C. ¤ 3231.
Timely notice of appeal was filed, and this Court assigned Lawrence Mark Stern
as counsel on appeal.
ISSUES PRESENTED
1. Whether the evidence against appellant was irrelevant,
prejudicial, violative of Constitutional rights and the rules of evidence, and
insufficient as a matter of law.
2. Whether the prosecution's misrepresentations in opening and
summation, compounded by the court's deletions of *2 relevant testimony from
read-backs requested by the jury, and the prosecutor's testimony and vouching
inflaming the jury with the fear of terrorism, and shifting the burden of proof
deprived appellant of a fair trial.
3. Whether the Court's charges that circumstantial evidence is
what everyone knows about a bully, that defense counsel's arguments were wrong
and that "piles of stuff" not in evidence were found in appellant's
apartment, and that conspiracy to bomb the World Trade Center did not require
specific intent and knowledge, deprived appellant of the constitutional rights
to fair trial and due process of law, and to grand jury indictment and fair
notice of the charges against him.
4. Whether the trial Court's ex Parte agreement with the
prosecution to conceal the evidence, its misrepresentation to defense counsel,
and the prosecutor's misrepresentation to the jury that a witness was not a
paid government informant on this case, the Court's concealment of other
relevant facts about prosecution witnesses, and its preclusions or
cross-examination constituted reversible error in violation of appellant's
Fifth and Sixth amendment rights to effective counsel, due process, and
cross-examination, and his due process right to an impartial judge.
5. Whether the prosecutor's in-court prompting of a witness with a
suggestive photospread to identify appellant instead of a juror denied
appellant a fair trial and due process of law.
6. Whether the prosecutor's coercive questioning of his *3 witness
to obtain desired answers, the Court's interruption of cross-examination on the
subject of the witness' resultant lie, and the Court's instructions
ameliorating the incident and supplying neutralizing testimony, violated the
rules of evidence and deprived appellant of the constitutional rights to
cross-examination, fair trial, and due process of law.
7. Whether anger, fear, and hatred against appellant were
instilled in the jury by days of victims' testimony, gruesome autopsy photos,
medical examiner testimony, and oral recitations of hate literature irrelevant
to guilt and denying appellant a fair trial and due process of law.
8. Whether the Court's refusal to conduct the requested probing
voir dire of the jury on bias against Muslims and reaction to hate literature,
where the crime charged was violent, and the appellant was a member of a
racial, ethnic and religious group different than the jurors, and the
prosecution presented inflammatory evidence consisting of literature advocating
religious wars in the name of Islam, denied appellant the Sixth amendment right
to an impartial jury.
9. Whether appellant's joinder at a trial with one co-defendant
whose luggage contained hate literature which was introduced against appellant
and with another defendant who argued that an associate of appellant's had
masterminded the plot to blow up the World Trade Center deprived appellant of a
fair trial and due process of law.
10. Whether appellant was denied counsel of choice, effective
assistance of counsel, and an impartial judge at *4 sentencing, and whether the
sentence violated statutes, guidelines and the constitutional rights to due
process of law and against double jeopardy.
STATEMENT OF FACTS
I. The Prosecution's Case: Circumstantial Evidence of Association;
No Knowledge or Intent to Bomb World Trade Center; Denial of Voluntariness
Hearing; Suggested In-Court Identification; Irrelevant Evidence; Opinions About
A Bomb and It's Container
Ahmed Ajaj and Ramzi Yousef arrived in the United States on the
same flight from Pakistan on September 1, 1992, six months before the World Trade
Center explosion on February 26, 1993 (2350-2700). [FN1] Ajaj was carrying a
suitcase containing Islamic literature and some manuals about making bombs. He
was detained and later arrested for an INS offense. He remained in custody from
the moment of his arrival in the United States until March 1, 1993, several
days after the World Trade Center explosion, and thereafter he continued to
report to his parole officer.
FN1.
References are to pages of the trial transcript.
Ramzi Yousef entered the United States. He and Mohammad Salameh
rented various apartments in Jersey City, New Jersey, finally settling at
apartment C at 251 Virginia Avenue (2839-50). In October, 1992, Salameh and
Nidal Ayyad opened a joint bank account with a deposit of $8,500 (2780-95).
Appellant Mahmud Abouhalima had a separate and unrelated bank account in a
different branch of the same bank in a different state. (2789-2826).
Telephone records from the Virginia Avenue apartment *5 for the
period November through January, 1992, show calls to chemical companies, to
appellant's place of employment, to his apartment in Avenal, New Jersey, and to
others, including a Mahmud A. in Woodbridge, New Jersey. The phone records also
show calls to the Virginia Avenue apartment from telephone numbers registered
to appellant (6518-50, 6632-6730).
Yousef and Salameh bought chemicals, including urea and nitric
acid, from City Chemical Company and other places. Deliveries of the chemicals
were ordered to a storage locker, Space Station Storage, 69 Mallory Street in
Jersey City (348298, 3675-3719, 2966-3033).
Ashraf Moneeb lived in the Virginia Avenue apartment with Salameh
and Yousef, whom he also knew as Rashed. Moneeb lived in the living room and
Rashed and Salameh in the bedroom. The phone was in the bedroom. Moneeb did not
spend much time in the apartment. He went to school during the day and worked
at night (2853-54, 2879). On some occasions when he was home, Musa and Abdul
Rahman visited with Salameh and Rashed. They stayed in the bedroom with the
door closed. Appellant also visited about three times, and the bedroom door was
kept closed. The door was closed as a courtesy to Moneeb, who wanted his
privacy and needed to study (2839-60, 2874, 2888). Over objection to the
statement which did not qualify as co-conspirator hearsay, Moneeb testified that
Rashed told Moneeb that "Mohammad" Abouhalima, "could possibly
help them out to find a new apartment." They said they found one in Newark
and moved (2861). Mohammad Abouhalima is appellant's brother (5605-06, 5542,
8968). He was present at appellant's apartment *6 when it was searched by the
FBI one month after the World Trade Center explosion. Like appellant he is tall
and has red hair and drove a limousine (5605-06).
On December 19, "992, appellant visited a gunshop near his
home in Avenal, New Jersey and bought smokeless gun powder. The price for the
ammunition itself was too high, so appellant bought only the powder in order to
reload the ammo which was used for target shooting. The brand of powder which
the gunshop sold was Hodgdon (3050-58). No guns or ammunition were found in
appellant's apartment when it was searched three months later (5583-84,
5598-5600). Smokeless powder, not the same powder as that purchased by
appellant but the same brand, in a different container, and mixed with another
chemical, was found after the World Trade Center explosion in the Space Station
Storage locker rented by Salameh and Yousef (3047-50, 6912, 6962-63).
Objections to the testimony about appellant's purchase and to the absence of
guns in his apartment were overruled (3047-50, 6286-88, 5598-5600).
In January, 1993, Salameh rented an apartment at 40 Pamrapo Street
in Jersey City. There was no refrigerator in the apartment (3323). He moved out
at the end of February (3320-54). After Salameh moved in, the super at the building
saw a few cars in the driveway, including a black Lincoln. This was not unusual
because the super knew someone in the neighborhood who drove a Lincoln (3343,
3372). The super told the FBI that he didn't see a Lincoln at 40 Pamrapo often,
and he could not remember the plates on the Lincoln, but at trial he testified
that they were New York plates (3345, 3378-79). *7 The driver of the Lincoln
was a "big guy" (3345). [FN2] On the day Salameh moved out at the end
of February, there was a station wagon in the driveway; no van (3347, 3354).
After Salameh moved, the super entered the apartment and noticed nothing
suspicious, but there were some blue spots on the walls (3351-54).
FN2.
Appellant drove a Lincoln town car, gray in color. In January, 1993, he changed
Lincolns to one which was dark blue (5871-72). Appellant used the car to carry
passengers for a limousine service (5866-72).
Carl Butler, a tenant in the apartment above the one rented by
Salameh at 40 Pamrapo, noticed that a red haired man visited several times a
week. That visitor had the "weirdest" red hair the witness had ever
seen but was not someone in the courtroom during Butler's testimony (3386-92).
The visitor was about 45 years old dressed like a chauffeur, and drove a dark
colored town car with Taxi and Limousine plates. On one occasion the visitor
seemed agitated about something which was inside a station wagon parked in the
driveway. He "barked" something in a language which Butler did not
understand. Others drove away in the station wagon, and the visitor followed
them in another car (3398- 3400). Butler never mentioned this
"barking" incident during the fifteen interviews he had with the FBI
prior to trial (3415-16). Butler testified that the apartment was quiet and that
he did not smell the fumes that FBI experts said would emanate from the making
of explosive chemicals (8112, et. seq.).
FBI search teams went to 40 Pamrapo on March 6, eight *8 days
after the World Trade Center explosion, and recovered various items which were
then submitted to chemical analysis. Traces of various chemicals such as
nitroglycerine and urea nitrate which could be used in explosives were found
(6855-63, 6968-7003). Although the FBI chemist concluded from his observations
of 40 Pamrapo that, "either mixing or storage or presence of some sort of
materials such as acid and what not were actually within that apartment"
(6992), he conceded that FBI evidence gathering procedures permitted
contamination of the questioned items with chemicals transferred from the
search team and their evidence containers (7149-50, 7126-30, 7148-49, 7172).
The search team did not take precautions against contamination (6861-62, 6209-
12). No quantity measures were done to determine how much of the trace
materials were present on the questioned items or how much had been present in
the various evidence containers or on the gatherers themselves (7151). The
chemist even admitted that his positive conclusion of the presence of
nitroglycerine was contradicted by some of the data (7121-26, 7131-34). At one
point he testified, "There's not proof of the material being there"
(7137), but claimed he had done some additional test to confirm the
nitroglycerine (7304- 07). He testified that the bluish color on the walls was
from something eating into the walls and that there was corrosion on the
doorknobs, (6993-94), but he also testified that handling of nitric acid over
time would have caused noticeable burns on the hands, of which there was no
evidence about the hands of the defendants in this case (7155-56).
*9 Appellant's apartment was searched by the FBI in August, 1993,
and among reams of clothing seized and subjected to chemical analysis, one shoe
was found by an FBI chemist to have traces on it of sulfur ions (7016-17,
7160-94, 5622- 26). The presence of the sulphur ions and a small crater in the
surface of the shoe led the chemist to conclude that this evidence "was
consistent" with sulfuric acid being on the shoe (7017). Sulfuric acid is
a component of nitroglycerine as well as of common automobile batteries. The
sulfate chemical is used in the dyeing and tanning of the shoe itself, and it
is present in magnesium sulfate which is common Epsom salt (7160-67). No other
clothing from the apartment contained traces of any chemical which could even
arguably be deemed chemical explosive residue, and none were found on or in
appellant's 1988 Lincoln (7182-84). Nitroglycerine residues were not found at
the World Trade Center after the explosion, even though there was extensive
swabbing of surfaces which would have captured the residue (7114-21).
On March 4, a week after the World Trade Center explosion the FBI
searched an apartment at 34 Kensington in Jersey City, which had been rented by
Salameh and Yousef in the Fall of 1992, but which was inhabited by others at
the time of the search. In the trash the FBI found a torn map indicating
directions to 65 Baldwin Street (6081-6103, 6121). The owner of the Baldwin
building identified a man in a photograph (GE-90-I) as Mohammad Abdul Hammed,
the tenant of the second floor apartment during November '92 through November
93 (6447-49). The photograph shows two others including El Sayid Nossair *10
(6560). In April, 1993, a refrigerator at 65 Baldwin was swabbed by the FBI for
chemical residues and swabs were found to contain traces of nitroglycerine
(7005-15). Fingerprints of Ramzi Yousef were also found on the refrigerator
(7733). Over objection on relevance grounds, but upon offer by the prosecution
that they would prove that the refrigerator at 65 Baldwin had been at 40
Pamrapo, a receipt (GE755) for the 1991 purchase of the refrigerator by
appellant was permitted in evidence, but never introduced. The prosecution also
never introduced evidence that the refrigerator had been at 40 Pamrapo, but the
receipt, which had been found in appellant's apartment pursuant to a search
conducted by the FBI on March 19, 1993, three weeks after the World Trade
Center explosion, remained in the case as if it was in evidence against
appellant (5583-94). The government argued that appellant had purchased the
refrigerator which was used to house explosives for the bombing of the World
Trade Center, but no nitroglycerin residues were found at the explosion site
(7114-21).
Wahid Moharam, who operated a limousine service out of the
Sheraton Hotel in Woodbridge, New Jersey, testified that appellant drove for
him "from time to time." (5870). In mid-January. 1993, Moharam bought
a van and took appellant with him to look at it. Appellant said the van was
nice and asked several times thereafter to borrow it. Appellant also offered to
have the van registered in his name, because he had limousine plates available
and Moharam could not otherwise register it because it was not fully payed for.
One week prior to the explosion at the World Trade Center appellant asked to
*11 borrow the van again, but it still was not registered (5877-79, 5889-90).
Moharam was a paid informant for the FBI. He'd been paid $550 on a
previous case in 1991. On this case he was expecting the FBI to make up for the
loss of his limousine business which he attributed to his involvement in this
case and his employment of appellant. All his other business ventures before
the limousine service had also failed. He was making $2,000 per week operating
the limousine service. In November, 1993, two months before his testimony, the
FBI gave him $5,500 and promised him $500 per month after the trial in addition
to $1,500 per month for rent. He hadn't filed income tax returns for 1992 and
1993. He met with the FBI ten or more times and on each occasion they went over
with him the same questions and answers about this case (5869, 5890-5913, 5940-
52).
In January, 1993, Salameh and Yousef were in a car accident which
required Yousef's hospitalization for several days. Appellant drove Salameh to
the garage to retrieve his belongings from the wrecked car (3067-3114,
3157-65), and later he picked up Yousef upon his discharge from the hospital
(3117-49). Throughout January, according to telephone records, there were calls
to and from 40 Pamrapo to numbers registered to appellant. Appellant's credit
card number was used for calls from the pay phone near 40 Pamrapo (6518-50,
6632- 6730).
According to the initial testimony of a gas station attendant,
Willie Moosh, two of the trial jurors pulled into his gas station in the early
morning hours of February 26, the *12 day of the World Trade Center explosion.
One was driving a yellow van and the other, who paid for the gas, a passenger
vehicle. Moosh then changed his testimony and identified Salameh and appellant,
respectively. The change occurred after an overnight break in his testimony and
after the prosecution had been permitted to show Moosh his prior photo spread
identifications of Salameh and appellant (3996-5042, 5229-30). See discussion,
infra.
On February 26, the same day as the explosion, appellant called
the Bell Atlantic telephone company to complain that all the calls on his
credit card bill for the period ending February 16 had been unauthorized. The
bill was probably leceived on the 26th, because it takes ten days for a bill to
reach the customer through the mail. A previous attempt to cancel the card had
been made on February B. The telephone company honored appellant's request and
gave him credit for all the calls (6545-51).
At six or seven P.M. in the evening of February 26 or 27, the
evening of the World Trade Center explosion or the evening of the day after the
explosion, Wahid Moharam encountered appellant at the limousine service office
in the Sheraton Woodbridge. Over defense objection, Moharam was allowed to
answer in response to the question "What was he doing there?" that
appellant "walked in nervous." Over objection, Moharam was allowed to
answer in response to the question "What did he look like?" that
appellant was "very, very like scared, very nervous." (5880-82, 5850,
5901). Over objection, Moharam was allowed to testify that he asked *13
appellant what had happened and appellant replied that there was an accident,
the car was okay, but somebody got hurt. Moharam got a glass of water for
appellant who pushed Moharam and fell to the floor in prayer, something
appellant had not done before in the office. Appellant refused to talk about
the accident and left the office (5880-82). Moharam testified that appellant
did not have a job that evening (5902), and that the prayers could have been
the "Suna" or voluntary prayers which a devout Muslim could make at
that time during the holy Ramadan period of fasting (5902, 5954). Appellant did
not answer a beep for a job the next day, so Moharam went to his apartment
where appellant said he had a problem and couldn't do the job (5882- 86).
In overruling objection to the testimony about nervousness and
prayer, the Court opined, "The fact that he prays doesn't mean he's guilty
of anything ... He's [Moharam] the guy who claims he knows. He can be
cross-examined about it. That's all I can do" (5850-52).
Travel agency documents and airline tickets evidence that
appellant travelled to Jedah, Saudi Arabia on March 2, five days after the
explosion, and that his wife and four children followed a week later.
Appellant's ticket permitted additional travel to Khartoum in the Sudan, but
there are no documents which verify that that portion of the ticket was
actually used (5530-35, 5547-50, 5552, 5557). For someone who wanted to fly
from New York to Cairo and save money, the flight from New York to Khartoum
through Saudi Arabia, with a purchase in Khartoum of a ticket for the last leg
to Cairo, was much *14 cheaper (5546-47). The ticket was arranged by Mohsan
Shalibi who actually accompanied appellant to the travel agency office to
ensure his commission on the ticket (5536-38, 5542).
Appellant's airline flight to Saudi Arabia took place during the
holy period of Omhra-Haj when Muslims must go to Mecca in Saudi Arabia at least
once in a lifetime, and it was also the last ten days of Ramadan when Muslims
commonly make the pilgrimage. Many similar airline reservations were made at
that time, due to the significance of the period in a devout Muslim's life
(5538-42). The airline documents evidence that appellant could only have had
carry-on luggage (5554). The Omhra-Haj ritual requires Muslims to wear only a
single cloth (5553-55).
On March 24, 1993, the FBI placed appellant on an airplane at the
Cairo airport and flew him to the United States under arrest for the World
Trade Center bombing. When he was placed on the plane he had bandages around
his head covering his face down to his nose. Underneath the bandages was a
sleeping mask. Cotton was stuffed in his ears and he was handcuffed (5957-60,
5966-68). On the plane, the restraints were removed, and appellant was given
advice of his constitutional rights. He did not respond but rather fell asleep.
Sometime thereafter he was "asked of his knowledge of 40 Panrapo" (emphasis
added), and he replied that the pronunciation was incorrect. He fell asleep and
upon awakening said, "the name of that street is Bainbridge." Shortly
after that he asked if the interrogator "knew an individual by the name of
Rashid." (emphases added). The interrogator replied, *15 "You mean
Rashed ... Rasheed." (emphases added), and appellant replied, "Rashid
... Raashiid" (emphasis added). Throughout the twelve hour flight to the
United States appellant continued to alternately fall asleep and awaken
(5957-82). There was no testimony that appellant was asked to comment on the
World Trade Center bombing.
At an in-chambers conference prior to the testimony of the
detective who brought appellant back on the plane from Egypt, defense counsel
asserted that appellant had been in custody in Egypt and tortured prior to
making the statements on the plane. Counsel asked the Court to hold a hearing
and to make a voluntariness determination. The Court replied, "Well, I
don't know what is going to be adduced from this," and no more was said
about it (5933-34). Counsel's failure to follow up on this motion is the
subject of a separate motion filed in this court for remand on grounds of
ineffective assistance of counsel and new evidence.
On March 19, 1993, appellant's apartment was searched and ten to
twenty boxes of material were seized. Introduced against appellant, over
objection and without evidence that it was among those things seized from
appellant's apartment, was a magazine containing an article entitled "Demolition
and Destruction of Buildings." Appellant's fingerprint was on a page of
the article (7217-18, 7734, 7779, 5583-5626). Among the hundreds or thousands
of items and scores of places examined for fingerprints in this case, the one
on the magazine was the only one of appellant's discovered. The magazine was
dated, May, 1990, and contained other articles about fasting *16 during
Ramadan, Kashmir, and the civil war in Afghanistan (7564-67). It is a magazine
generally available commercially (7447-49, 7467-68).
A structural engineer who participated in the original design of
the World Trade Center testified that on February 26, 1993, immediately after
what was believed to be a transformer explosion but which could not have been
caused by any system in the building itself, there was a conflict between the
police and the engineers about how to deal with the scene. The safety engineers
prevailed initially and went in first to shore up the building. They had to cut
holes and remove debris, some of which fell into the crater made by the
explosion (664- 73, 685, 768-84). FBI and ATF agents who went in later had to
"dodge shifting debris" and doubted that the scene was in its
original undisturbed state (846, 1427).
The FBI explosives and tool mark expert did not arrive at the
World Trade Center until the day after the explosion (7958). He walked around
the site and concluded from the configuration of the debris that the explosion
had been caused by a bomb of a certain velocity and that only a fertilizer
based explosive such as ammonium nitrate or urea nitrate could have been
responsible (7959-75, 8137). The FBI chemist could not confirm that urea or
ammonium nitrate were the components of the bomb, even though, he admitted, the
FBI was looking specifically for those chemicals at World Trade Center because
they had been discovered in the Space Station Storage locker rented by Salameh
and Yousef (6900-08, 6884).
Several days later when the bomb expert was shown a *17 piece of
frame from a vehicle (GE3028) he concluded that it came from the vehicle that
housed the bomb. Eis conclusion was based on the facts that none of the other
pieces of metal he had seen had had as much explosive damage and that this
piece also had a traceable vehicle identification number on it (7999). There
was no objective proof, other than his opinion, that this and other pieces of
metal came from the bomb container (8077-79). Where the pieces were found also
influenced his opinion (8018-33), but ricocheting, rather than the direct
explosive source, could have accounted for where the pieces landed (8073).
There were many other yellow vans in the area of the explosion (8074), and an
expert on vans testified that he could not say whether the pieces attributed to
the bomb container came from a 350 or 250 series Ford Econoline van (1871-80,
1755-68). Nonetheless the FBI bomb expert testified that upon looking at the
piece with a VIN number, he concluded that it came from a 350 series, the same
kind of Econoline van rented by Salameh a few days prior to the explosion
(7999-8021).
The metal frame piece with the VIN number, LHA75633 (GE-302B) was
found two days after the explosion by a Bureau of Alcohol Tobacco and Firearms
expert, Joseph Hanlin. He found it "in the dark", by the light of his
flashlight at the lip of the crater made by the explosion (807-29, 847, 863).
He knew immediately that the piece came from the vehicle which had contained
the bomb (829), even though he conceded that any conclusion about that would
have to have depended on the reports of other agents, a chemist, and other
evidence (953). *18 When he found the piece he was in the midst of
"dodging shifting debris" all around him and couldn't keep track of
the time (846). Agent Hanlin claimed that a gag order prevented him from discussing
his discovery, but he told Nightline and a number of other interviewers anyway
(853).
Agent Hanlin's conclusion that the piece with the VIN number came
from the source of the bomb was based on the fact that it was intact (951-53),
but a crushed van with an intact engine found south of the crater was not
chosen as the likely bomb container (1557). An FBI bomb expert, Kevin G. Miles,
who was also sifting the debris for pieces of evidentiary value, disagreed with
Agent Hanlin and rejected intact items as not being part of the explosive
containing vehicle (1040). Agent Miles chose 193 separate pieces of evidentiary
value based on his theory which contradicted Agent Hanlin's, but only three of
those were chosen to be included as parts of the van which supposedly housed
the bomb. The other 190 pieces, may have had writing on them like the ones introduced
in evidence (1027-34, 1035-36). Agent Miles was instructed to find pieces of a
Ford van (1040). Two intact Ford mini vans were found on the B-2 level near the
crater (1560).
Approximately twenty other FBI agents testified to sifting debris
and discovering, or recording the discovery of, various pieces of the Ford van.
To guide their search, a yellow Ford van of the same type as rented by Salameh
from Ryder Rental was parked at the site (955-1588, 1183-85). They were told
that arrests had been made and to look for pieces of a Ford van, and when they
found pieces with that logo they *19 retrieved them as evidence (1004-16,
1136-37, 1146-53, 1216). Many of the agents found car parts, including pieces
with Ford emblems, which they retrieved, but which they were not asked to
identify in court (1447-48, 1314, 1249, 1261, 1144-47, 1020-24, 966). Although
location was a factor in the decision to segregate from the debris a piece of
metal as a part of the bomb container, there were instances of evidence log recorded
locations different from the locations recollected by the retrieving agents
(972, 984) of recorded debris on which there were no identifying marks to
refresh the retriever's recollection of where it came from (1071-80), of the
omission of a record of the name of the retriever (1207-08), of neither the log
nor the retriever providing the information as to where in the crater or by
whom a particular piece was found (1140-43, 1457-58), and of pieces produced
for trial not in the same condition as when they were found (1549-50)
The agents had the complete discretion to pick and choose among
the debris, and they discarded many pieces (1058) and employed contradictory
theories in making their choices. One agent opined that an intact engine block
would likely come from the explosives containing vehicle, yet he chose a small
piece of an engine block as a part of that vehicle (1176-78). Another agent,
acting on his own theory that the explosion was not an inside job, eliminated
pieces of metal filing cabinet as parts of the explosives container. A World
Trade Center employee whom he questioned said that metal filing cabinets had
been in the office prior to the explosion (1423-24).
From the VIN number on the metal frame piece, an *20 agent for the
National Insurance Crime Bureau determined that the piece came from a 1990 Ford
Econoline truck reported stolen on February 26 (1629-45). The Parking attendant
and the Manager of Port Authority vehicles parked at the World Trade Center
garage testified that there were many vans and trucks parked there and several
Ford vans in particular, that most of the Port Authority vans are painted
yellow, and that one of them was totalled although its engine remained intact
(237-64, 1652-72). The Power Train and Chassis Manager for the Design Analysis
Department of Ford Motors identified several of the metal pieces retrieved by
the agents as coming from either the Series 250 or 350 Ford Econoline van. The
two types of vans look alike, but have different internal parts and load capacities.
Only two of the parts, those with the recognizable VIN numbers, the left frame
rail and the bottom of the near door, could be identified as coming from a
Series 350 van (1755-1813, 1871-80).
The Director of Operations of the Consumer Rental Department of
Ryder Rental vans testified that the VIN number from the metal pieces found at
the World Trade Center belonged to a Ford Econoline 350 purchased by Ryder,
licensed in Alabama with plate number XA-70668, and rented by Salameh on either
February 23 or 26, according to ambiguous Ryder documents. Salameh bought the
insurance at extra charge when he rented the van (1882-1911). The Ryder rental
agent on Kennedy Boulevard in Jersey City, two blocks from Pamrapo Street,
testified that he rented a van to Salameh, in Salameh's name on February 23.
Salameh paid more of a deposit for a longer rental period than *21 a few days
(3580-87, 3608-09).
Salameh returned to the rental agency the next day to have a
broken mirror on the van replaced. On that same day, the prosecution claimed,
according to Salameh's fingerprint on a World Trade Center garage parking stub,
Salameh visited the garage at 1:58 P.M. (3511-71). However, the Assistant
Manager of the Space Station storage locker testified that he saw Salameh there
in Jersey City at 1:55 P.M., and that it was not possible to drive from there
to Manhattan in three minutes (3809-11, 3853-56).
Employees of Space Station Storage testified that they saw Salameh
and Yousef there on February 25 awaiting a shipment of compressed gas
cylinders. When the truck with the cylinders arrived, the Assistant Manager
stopped it because the storage facility did not accept such materials. As he
was talking to the truck driver, he saw a yellow Ryder van, which may have had
red lettering (the alleged bomb containing Ryder van had black lettering), pull
into the facility, followed by a sedan (3813-20, 3873). Another worker at the
facility, who was coached by the prosecution during a break after testimony
that he did not see a van (see discussion infra), said he saw a van driven by
Salameh but it was not followed by a second vehicle (3916). The facility's
electronic entry keypad records two entries back-to-back at that time, but the
entries could have been walk-ins or vehicles, or both, and the subjects of the
entries went to two different storage lockers. Salameh and Yousef had only one
locker (3733-58, 3847-52).
On the evening of February 25, as Salameh shopped in *22 a
Shoprite supermarket, the van was stolen. He reported the theft at ten P.M. but
the tag on the Ryder keys had the wrong license plate number. He tried to call
the agency but it closed at 7:00 P.M. (5467-75, 3613, 3938-48). Salameh
returned to the Ryder rental agency on February 26 at 2:00 P.M. to report that
the van had been stolen on the 25th. Apparently the van was actually returned
on the 26th, because there is a closing contract on the rental and the contract
notes that the van was returned on that date (3589-97, 3601, 3658-59). The
agent nonetheless told Salameh that he would need a police report in order to
get his deposit back. The agent hired an attorney to protect his proprietary
interest in his story about this rental to Salameh (3650-51).
On February 26, Salameh went to the Jersey City Police Department,
reported the theft and showed the keys to the van (3961-68). On March 1,
Salameh returned to the agency even though the police report was not ready. The
agent advised him to wait for it. Salameh telephoned on March 4, and the agent
told him to come and get his deposit (3599-3600) Salameh was arrested as he
waited for a bus after exiting the rental agency. The Shoprite receipt for
February 25 was still in his pocket as was his address book and wallet, and
Nidal Ayyad's business card (5479-92). The arrests of his friend, and associates
and the searches of their homes and workplaces followed.
Motions to dismiss for failure of the prosecution to establish a
prima facie case and proof beyond a reasonable doubt were denied (8189, 8269).
*23 II. The Prosecution's Opening and Summations:
Misrepresentation of Fact, Shifting the Burden, Supplying Testimony
There was no evidence for the following assertions made by the
prosecution in their opening and closing statements: that appellant was seen at
night at 40 Pamrapo, the so-called bomb factory, carrying buckets of explosive
materials and bundles of yellowed newspapers (26, 8501-02 objection at 38-42);
that appellant had been identified as the red haired man who was barking out
orders to Salameh outside 40 Pamrapo [FN3] (8415-16, objection at 3392); that
appellant was "the most frequent" of "very few" other
visitors to Salameh's and Yousef's apartment on Virginia Avenue (8366); that on
the flight from Cairo to the United States, appellant mentioned
"Rashid," who was Ramzi Yousef, in response to a question about the
World Trade Center (8477); that Moharam was not paid for information in this
case (9056) and that appellant did not tell Wahid Moharam why he was upset on
the night of the day after the explosion (8476, 9056). [FN4]
FN3. The
witness Butler positively denied that anyone in the courtroom was the red
haired man (3386-92).
FN4. In
fact, Rashid was not Ramzi Yousef's name: his name was Rashed, and the mention
did not follow a question about the World Trade Center, but was spontaneously
uttered during a sleeping-waking stupor (5957-82). Appellant told Moharam that
he (appellant) had been in an automobile accident (5880- 82).
The prosecution supplied testimony and misrepresented the record
when in summation they told the jury, over objection (8966-68), that their
witness Moneeb had testified, contrary to the record, that it was appellant,
not his brother Mohammad, *24 who had offered to help Salameh and Yousef find
the apartment at 40 Pamrapo. To bolster their claim,the prosecution falsified
the record by claiming that Moneeb had actually identified appellant as the
person who had made the offer (8966-68, 8981-82, 8892-93), and argued their
personal knowledge that the transcript, which recorded Moneeb's naming of
Mohammad, was itself false and should not be credited. in fact, Moneeb had
identified appellant only as a visitor to the Virginia Avenue apartment
(8966-68, 8981-82, 5605-06, 5542).
The prosecution shifted the burden to appellant by arguing over
objection that the sulfur ions found on his shoe could only have come from
spilt chemicals at 40 Pamrapo, because appellant had not offered evidence of
the alternative innocuous sources which the prosecution's own chemist's had
testified to (8408, 8424). With the objection, appellant asked the Court to
give a curative instruction that he had no burden to prove how the sulfur ions
got on the shoe. The Court said it would take care of it in its charge to the
jury, but did not (8424).
III. The Charge: Circumstantial Evidence Presumes Guilt; Defense
Counsel Singled Out by Name for Criticism; "Piles of Stuff" from
Appellant's Apartment Offered in Evidence by the Prosecution; Knowledge and
Intent to Bomb World Trade Center Not Necessary for Guilt
The Court gave two examples of circumstantial evidence which
presumed guilt and proof of the ultimate fact, and which told the jury in
effect that they could draw on their feelings about character and prior acts to
discount innocent explanations for overt acts. Over objection (9195, 9198) the
Court charged.
*25 ... we can draw a conclusion from the actions of the person,
what his knowledge was, what his intent was. You do it all the time. You do it
all the time. You do it from circumstantial evidence. When you were a kid and
you were in school do you remember there was a bully? There was a bully in
every kid's class I am sure of it. Some kid, he'd come along and he'd step on
the toe of the guy beside him. The victim would yell and the bully would lo??
a- the teacher and say, oh, it was a mistake. I didn't mean to do that. That
was an accident. Every other kid in the neighborhood knew that it was no
mistake. Right? The direct evidence would be his declaration that it was a
mistake and an accident. But by circumstantial evidence, ladies and gentlemen,
you knew that it wasn't a mistake. It was him being a bully. You know, grownups
are just big kids. We think the same way. You can conclude from circumstantial
evidence what someone's intent or motive or knowledge was. Direct evidence is
often misleading circumstantial evidence is quite sufficient. One thing though
you should recognize, it still must be proved beyond a reasonable doubt.
(9135-36) [FN5]. The Court also repeated an example from its
opening statement that Robinson Crusoe had to infer from a footprint that the
island on which he shipwrecked was inhabited (9102-03).
FN5. The
Court ruled that objections and motions by any one Defendant would
automatically be applied to all, that a statement of reasons would be
unnecessary, and that all possible reasons for objections would be preserved
for appeal (388, 1286, 1288, 4014, 5908, 8298).
The Court singled out counsel for appellant and criticized him for
arguing that the prosecution had searched appellant's apartment but could find
only one magazine article to put in evidence against him. The Court charged the
jury to disregard the argument because there was a whole "pile of *26
stuff" from the apartment which the prosecution wanted in evidence but
which the Court precluded as merely cumulative (9101). When counsel objected
that the other literature had been excluded as irrelevant, the Court charged
the jury that it had been mistaken and that "I ruled, apparently, not that
it was cumulative, but that it was irrelevant because it had nothing to do with
the issues in this case ..." (9144). The damage had been done, however,
and the jury knew that there was a lot of other material in appellant's
apartment that the prosecution at least believed had evidentiary value. The
Court also did not tell the jury to recredit counsel's argument that one
article in the apartment was not significant evidence of guilt. The Court's
readiness to inform the jury of defense counsel wrongdoing, while overlooking
that of the prosecution, is apparent in its further criticism by name of
appellant Ayyad's counsel for arguing that Ayyad's statements had been
improperly introduced in evidence (9088-89). The Court had promised to
criticize the prosecution's argument that appellant had the burden to prove an
innocent source for the acid on his shoe, but it never did (8408, 8424).
The Court instructed the jury that only intent to damage property
was necessary to sustain all the counts of the indictment, including those
charging that deaths had occurred (9156-57).
Over objection that the prosecution had not adduced evidence
against specific defendants of bombing objectives other than the World Trade
Center and that therefore the Court should charge a requirement of specific
knowledge and intent *27 with respect to that building, the Court noted that
the indictment included any buildings and was "as broad as you can get"
(8300). The Court opined that a defendant would be guilty even if he intended
that the U.N. be bombed (8298-8301) and charged:
Count One charges the defendants with a conspiracy to bomb the
World Trade Center and to destroy vehicles and other property ... damage and
destroy and attempt to damage and destroy by means of fire and explosives
buildings, vehicles, and other real and personal property used in interstate
commerce ...
(9120-22);
... in discussing the objects of the conspiracy at one point I
suggested in a shorthand way apparently that the objects of the conspiracy was
to blow up the World Trade Center, but that's not accurate. The objects of the
conspiracy are the four objects listed in the indictment ... to damage and
destroy ... buildings, vehicles and other real and personal property used in
interstate commerce ... In my shorthand way I misstated. Those are the objects
as charged in the indictment. It is not restricted to a particular building.
(9144-45).
IV. The Compounding of Irrelevant Facts to Give the Appearance of
a Case
The prosecution's case compounded innocuous facts to give the
appearance of guilt. The introduction against appellant of a sales receipt
evidencing his purchase two years prior to the World Trade Center explosion of
a refrigerator found in an apartment unconnected to the crime is described in
Section I, supra. Over objection, the receipt and the refrigerator were treated
as if they had been introduced in evidence, despite the prosecution's failure
to introduce them *28 and to adduce as promised additional evidence connecting
the refrigerator to the alleged bomb factory at 40 Pamrapo (Section I, supra,
at 9- 10). Also set forth in Section I are the details of the introduction of
appellant's purchase of smokeless powder months before the explosion, and the
fact that no guns were found in his apartment after the explosion. This
evidence was introduced against him, over objection, despite the prosecution's
concession that the powder he purchased was not found at the explosion site or
at the Space Station storage locker after the explosion.
At the time of the purchase, appellant gave a plausible
explanation for the purchase which was not negated by the absence of guns in
his apartment three months later (Section I, supra, at 6).
The spectra of guilty association was furthered by the
prosecution's introduction of the fact that appellant maintained a bank account
in the same bank as Salameh. The evidence was introduced despite the fact that
appellant's account was in a different branch of the bank in a different State
and was "unrelated to this [Salameh's] accounts." The account was
kept in a branch near the car service for which appellant above (2789-2826).
The prosecution introduced evidence that appellant visited El
Sayed Nossair at the Attica "Institution" on February 7, 1993, a fact
having no relevance to the case and prejudicing appellant by associating him
with the well *29 publicized accused killer of Rabbi Meir Kahane. [FN6] Upon
appellant's objection to the relevance of this visit, the prosecution argued
that the purpose was to show that appellant used his credit card on that date
to make a phone call from Attica. The latter fact, however, was not relevant
nor material, because the evidence was not disputed that the credit card which
was in appellant's name was not ordered canceled by him until the next day,
February 8 (6556, 6545-51), and the Attica records, in any case, show that
appellant's brother Mohammad, not appellant, was the one who visited on
February 7 (6556-66).
FN6.
Emphasis of that association was added by the admission, over objection of
photos of defendants with Nossair (6098-6101, 6560).
Without evidence that it was seized from appellant's apartment
(5583-5606), but introduced over objection as if it had been (7217-18), was a
magazine with appellant's fingerprint on an article about demolition of
buildings. The magazine was admitted according to the Court's theory regarding
all the literature about guns and explosives uncovered in the case,
notwithstanding absence of connection to the World Trade Center explosion,
Now, let me suggest to you that they [who do research on the
Holocaust, for example] have one of these books and they build a gas chamber
and they stick somebody in it and, you know, gas the person, can the book be
admitted as evidence? The answer is, sure it can.
(7243). The magazine attributed to appellant's possession was
dated, May, 1990, included other articles about fasting at Ramadan, Kashmir,
and the civil war in Afghanistan. A copy of *30 the same magazine was found
among Ajaj's belongings and was commercially available (7447-49, 7564-67,
8192-8212).
Moharam's testimony that appellant was interested in vans and that
he was nervous and prayed on the night of, or two nights after, the explosion,
did not logically advance the possibility of his intentional involvement in the
explosion. There are just too many exculpatory reasons for such behavior,
including the ones testified to by Moharam, that appellant had had an accident
with the car, that he did not have a job that night, and that a devout Muslim
could choose to pray at that time (5954, 5880-82, 5902).
The compounding of these irrelevant facts, even with the addition
of facts like sulfur ions on the shoe and presence at Salameh's apartment on
Virginia Avenue, does not retroactively, justify the admission of each one of
them. They are not connected by other evidence to each other or to the ultimate
questions of whether appellant knew of a plan to blow up the World Trade
Center, and that he did some acts intending to further the plan, unless, as in
the Court's example, the ultimate facts are presumed.
V. The Concealments and Misrepresentations of Facts About
Government Informants and Preclusion of Cross-Examination Into the Motives and
Biases of Government Witnesses
Wahed Moharam testified that he employed appellant as a limousine
driver, that in the weeks prior to the explosion appellant asked several times
to borrow Moharam's van, that on the night of the explosion, or the next night,
appellant appeared nervous and prayed, and that appellant declined work the
next day (See Section I, supra, at 12-13, transcript 5866-*31 5906). Moharam
was also a paid informant for the FBI (Ibid; transcript 5890-99, 5906).
According to a government document included in the 3500 material turned over to
the defense (35155J), Moharam had been arrested in 1991 for
"counterfeiting dealing with import and exported vehicles" and had
made some sort of deal with the government to become an informant for pay.
Appellant sought disclosure of the deal because it might affect Moharam's
credibility. The prosecution refused, and the Court refused to order disclosure
and precluded cross-examination on the subject, claiming that it knew the terms
of the deal and that it had nothing to do with this case. Appellant also argued
that the witness' claims of being in fear over his involvement in this case
(5890-91) could be discounted by cross-examination (5844-63).
Although the Court told defense counsel that Maharam's role as an
informant for the prosecution had nothing to do with this case (5863), the
Court had just had an ex parte, in camera conference with the prosecution at
which the prosecution informed the Court that Moharam's role was to provide
evidence of the activities of a named co-conspirator in this case, Sheik Omar
Abdel Rahman, the cleric who was a spiritual associate of appellant and who the
prosecution charges was the instigator of the plan to blow-up the World Trade
Center and who is presently on trial for that in the Southern District of New
York. The same Court which told defense counsel that Moharam's deal had nothing
to do with this case, wrote in another context in this case, "The criminal
transaction tried in the case at bar forms a part of the *32 charges in Rahman.
Furthermore, each of the four defendants in this case is alleged to be an
unindicted co-conspirator in Rahman." United States v. Salameh, 856 F.
Supp. 781, 784 (1994). In the ex parte conference [FN7], the prosecution misled
the Court that the fact of Moharam's role as an informant in this case would be
cumulative, "marginally relevant" and, "would serve to
compromise him as a potential witness in a pending indictment against Mr.
Rahman and in our view potentially expose him to a greater threat than he is
already exposed to at this point" (5857, 5856-57). The prosecution claimed
that part of the reason for asking ex part for concealment of Maharam's status
was that Moharam "is very concerned concerning the nature of the informant
activities" and didn't want defense counsel to know (5857). in a letter to
defense counsel, however, dated January 2, 1994, and copied to the Judge, the
prosecution revealed that Moharam was already relocated under Government
protection. The Court agreed to the concealment.
FN7. The
minutes of this conference were sealed during trial. They were unsealed in May,
1995 for the purpose of this appeal.
Carl Butler was the tenant at 40 Pamrapo who saw the man with the
"weirdest" red hair "barking" orders in a foreign language
in the driveway (3386-3432). Prior to his testimony the Court had another ex
parte, in camera conference [FN8] with the prosecution at which he granted the
prosecution's request to *33 conceal from the defense the facts that Butler had
lied in court documents and on his Air Force enlistment papers to cover up his
conviction and ten year prison sentence at Attica penitentiary during the years
1956-66 and that he had been AWOL and unfavorably discharged from the Air Force
(3307-18). Although the Court informed defense counsel that it was precluding
use of the prior conviction, it did not inform counsel of the prior perjuries
and its order precluding disclosure.
FN8. The
minutes were sealed during trial. They were unsealed in May, 1995, for the
purpose of this appeal.
Ashraf Moneeb testified that appellant visited the back bedroom of
Salameh and Yousef's Virginia Avenue apartment a few times, and the prosecution
claimed that, despite the record to the contrary, Moneeb identified appellant
as the man who Yousef said could help Salameh and Yousef find another
apartment, which the prosecution claimed was the bomb factory (2839-61). The
Court precluded cross-examination of Moneeb on the circumstances of his
questioning by the FBI, specifically on Moneeb's being handcuffed and held at
gunpoint by the FBI, his fear during questioning at FBI headquarters, and FBI
threats to deport him if he didn't answer their questions (2883-95). He was
expecting the grant of American citizenship in March, 1993, when the FBI first
visited him to ask about this case, but as of the date of his trial testimony
in November, he had not received it. The FBI took his green card when they
questioned him and told him that they would not return it until after he
testified (2882, 2892-97). Appellant argued that the proposed cross-examination
about the specific methods of intimidation employed by the FBI and about
Moneeb's *34 fears were relevant to Moneeb's credibility, bias, motivation and
state of mind to testify against appellant (2902). While precluding the cross,
the Court allowed the prosecution the self-serving leading redirect that Moneeb
was not "pressured to make things up." (2890, 2895).
VI. In-Court Suggestion that the Witness Moosh Identify Appellant
Instead of a Juror
A gas station attendant, Willie Mosh, testified that at 3 or 4
A.M. on the morning of the explosion, he put gas in a yellow Ryder van and a
navy blue car which accompanied it. The driver of the car paid for the gas for
both (3993). Moosh was asked on direct examination to look around the courtroom
and to identify the driver of the car. He identified juror number 6,
notwithstanding that two counsel for appellant drew attention to appellant by
both objecting to the procedure of having Moosh walk around the courtroom (4006-08).
Asked to identify the driver of the yellow van, Moosh picked out juror number 5
(4010). These jurors did not look like the defendants (4012-19, 5229-30).
Over objection to the impeachment of their own witness who had
actually made in-court identifications, the prosecution was permitted to elicit
Moosh's testimony that prior to trial he picked out different people,
appellant's photograph as the driver of the car and Salameh's photograph as the
driver of the van from different photospreads containing six photos each
(4012-22).
Trial counsel had made no pre-trial motion to suppress Moosh's
identifications, and he made none even when *35 Moosh identified the jurors and
gave other testimony indicating that his pre-trial identifications had been
suggested. [FN9] Moosh testified that a week after the van and the car left his
station, he saw a newspaper with a photograph and told "the baker"
that that was the driver of the van. He had also seen photographs on TV and
reports in the newspapers and on TV about the yellow Ryder van (4019, 4989-90).
The FBI then visited the station and told Moosh they understood that the gas
for the van carrying the bomb had been pumped at the station (5016). Moosh took
the agent home so Mrs. Moosh could assist in the interpretation. Moosh
testified, "my wife told me that he wanted to know if a yellow van had
gone there to get gas and a blue car" (4040). Realizing in court that he
probably wasn't supposed to identify jurors, Moosh explained, "Since like
ten months has gone by ... the people have been lost on me. And the FBI hasn't
shown me so many pictures like that" (4984). Indeed, according to Moosh he
identified Salameh's picture, Ramzi Yousef's picture and the picture of a third
man who was a passenger in the blue car, all in the same photospread, GE-730
(4020-22, 5026-27). Many Arabs with beards come to his gas station (4979-81,
4992), and he might have been confused because the jurors could also be
customers in his gas station *36 (5043-44). At trial Moosh described the driver
of the car as a white person with orange hair, freckles, and beard (4006).
Prior to trial when first interviewed by the FBI, he told them that the driver
of the car had dark hair (4057, 4062). Moosh claimed he had spent two hours
with the lead prosecutor during the day prior to his testimony, but the
prosecutor had been in court all day that day (4033-34).
FN9.
This failure of trial counsel is the subject of a separate motion for remand
and new trial filed in this Court. On April 1, 1993, Jesse Berman,
Esq.,
counsel who had preceded trial counsel, but was relieved on May 4, asked the
Court for a hearing into the manner of the presentation of the photospreads and
for the arrangement of corporeal lineups. These requests were ignored (See
transcript proceedings April 1, 1993).
Moosh had been paid $45,000 by the FBI by the time of the trial
(4049-53). He used to make $3,000 a year at the gas station before the FBI
started paying him (4047-48). He was not working at the gas station anymore,
because the FBI didn't want to chance his getting hurt on the job (5012). The
payments might not continue after the trial, because
If everything ends, my work ends, the work that I'm doing now. I
end up without having a job because of defending, sort of, the country here.
Because when I became a legal alien, a resident alien, I took an oath to defend
this country ... That's what I'm doing. I am defending this country. I am
defending this nation
(5010). Moosh testified that the money from the FBI was to enable
him to move to a different residence, but then he admitted that he still lived
in the same place as he did before his association with the FBI (5002, 5038).
After an overnight break and having seen in court their photographs with his
initials on the backs, over objection Moosh was permitted on government
redirect to identify Salameh and appellant in court as the driver of the van
and the blue car, respectively (5034-35). A red car joined them and the three
cars left the station together (4008-11).
*37 VII. The Prosecution's In-Court and Out-of-Court Coaching of
the Witness Igiri to Identify Salameh in the Ryder Van, and the Court's
Minimization of Igiri's Lie
A worker at the Space Station Storage Locker, Blessing Igiri,
identified Salameh as the man named Kamal Ibrahim who rented locker numbered
4344 at the storage facility (3886-89). On February 25, a truck arrived at the
facility to make a delivery of cylinders to the locker. The Assistant Manager
went out to the street to stop the truck from entering the facility, and Igiri
watched through the office window. The prosecution attempted to have Igiri
testify that he later saw Salameh exit the facility in a yellow Ryder van
followed by a sedan, but Igiri refused, despite repeated coercive questioning.
Q: And then What happened sir?
A: Sir, I can't recall what happened because as I told you I was
busy with a lot of things in the computer.
Q: So you don't recall seeing anything else?
A: I don't recall
Q: Okay. Now sir, did there come a time when you saw another
vehicle approach the gate? ... Did you see another truck or car come up to the
gate?
A: No.
Court: in connection with this?
A: No.
Q: Now, sir. Did you again at any point in time see Mr. - this gentlemen
right here, on that day after you saw the, after you saw the cylinders, did you
see this?
A: No.
Q: Did you see the gentleman he was with anymore that day?
A: No
Q: ... when Dave came in do you have any idea where the gentleman
who came in if the van was .... Objection
Court: No.
A: I saw him, I saw the gentleman that came with him outside with
Dave. They were standing outside.
Q: Did you see - you said that you didn't see *38 either of them
after that?
A: No.
Q: Did you see how either of them left?
(3896-98). When objection was taken to this last question, the
Court sua sponte adjourned for lunch and refused a defense request that the
witness be ordered not to talk to the prosecutor over the break.
After the lunch break, Igiri returned to the stand, and his direct
examination continued as follows:
Q: Now after that time that you saw the truck leave, did you see
this man who you identified as Kamal Abraham and the man that was with him any
more on that same afternoon?
A: Yes.
Q: When was that, sir?
(3900-01). The witness then testified that he saw Salameh and
another man, presumably Yousef, drive out of the facility in a yellow Ryder van
(3901). On cross-examination, the following colloquy took place:
Q: Did you talk to this gentleman [the prosecutor] over lunch
time?
A: No.
Q: You didn't discuss this case at all?
A No.
Q: ... From the time you left the stand this morning, okay, until
now or until you came back on the sand, did you speak to Mr. Childers?
A: Did I speak to Mr. Childers?
Q: Yes.
A: No.
(3901-02). At a side bar requested by the defense, the Court told
the prosecutor that if he hadn't spoken to the witness he "ought to have
[his] head examined" (3903). The prosecutor then admitted discussing it
with him. The witness was then addressed by the Court in open Court.
*39 Court: ... Did you talk to Mr. Childers, the fellow right
here, have a little chat with him about what he was going to ask you when you
came back?
A: No.
Court: You didn't see him at all?
A: I saw him pass through the hallway.
Court: But he didn't stop you and say, hey, look, Blessing, I have
got to ask you some more questions.
A: No.
Court: Are you sure?
A: No.
(3904). Defense counsel then started to make a request. The Court
cut him off and asked the prosecutor in open court, "Mr. Childers did you
talk to him?" The prosecutor replied, "Yes, your Honor. We did have
some words." The defense resumed cross-examination, and the Court then
interrupted and addressed the witness in open court:
You have to understand, Mr. Igiri, lawyers are supposed to talk to
witnesses before they arrive here because if they don't know what the witnesses
are going to testify to, God knows what we would be listening to. It is
required. If they sit down and talk to you, there is nothing wrong with that at
all. All right?
(3905). The witness replied, "okay", and the cross
examination continued Defense counsel asked, "Did he tell you what he was
going to ask you?" and the witness said, "yes." The Court then
interjected, "Not the exact words, but did he tell you basically what he
was going to ask you; yes?" The witness replied. "Yes, he talked to
me." (3906). Upon further questioning by defense counsel, the witness
claimed the prosecutor never asked him at any time about a Ryder truck (3906).
VIII. The Parade of Victims and Autopsy Photographs, Hate
Literature About Killing Jews and Christians and Other Prejudicial Evidence
The trial opened with the testimonies of more than 20 *40
witnesses over the first five days detailing the pain and suffering of the
victims of the explosion to no apparent purpose but the emotional blinding of
the jury (165- 660). Witnesses described experiences irrelevant to the case,
but so painful that the jurors were reduced to tears (593, 627). A front
windshield collapsed in on the driver of car leaving the parking garage
(174-75). An elevator operator detailed his walk down a hundred floors in the
smoke, and on the stand became distraught when describing his relationship to
his fellow employee who was killed (183, 207-08). Fire fighters and policemen
described taking people out of stalled elevators and down the stairs (195-96,
209-28). Others described being trapped in elevators (228-27). A parking garage
attendant broke down on the stand when describing how his booth fell on him
(344-65). An employee was permitted to describe in detail the office of the
pregnant woman who was killed (381-452). A maintenance man testified to being
blinded (452-71). Fellow employees described their meetings and plans before
and after the explosion with a man who was killed in it (496-50). Emergency
technicians unearthed dead victims days after the explosion (504-17). Injuries
were described in detail (600-620).
Despite the stipulation that people were killed and injured, and
over numerous and various objections (471-72, 544) approximately ten color
photographs of dead people and parts of dead people were introduced in evidence
and passed among the jurors, including a photograph of the dead pregnant woman
(544), photos and testimonial descriptions of the dead laid out *41 in the
makeshift morgue in the Tall Ships Bar of the vista Hotel (562-66), photographs
of the remains of the victim whose body was recovered from the rubble, the body
of a victim who died at St. Vincent's Hospital (566-72), and a photograph of a
head with a hole in it (627). The Medical Examiner was then permitted to review
all the death and injury and to refer to the photos again with detailed
descriptions and opinions about causes of death about which there was no
dispute (629-55). All objections and motions to preclude and to declare a
mistrial were overruled and denied. The Court ruled that this sort of evidence
always comes in in "murder" cases (262-64, 365, 471-72, 501, 544,
620-27).
Over objection and motions for preclusion, severance, limiting
instructions and mistrial (7074-75, 7320-21, 7340-44, 7226-27, 7231-43,
7247-51, 7286) the Court admitted against all the defendants various documents
and literature seized from co-appellant Ajaj's luggage when he was arrested
upon entering the country six months prior to the explosion. The Court
recognized a problem with unsigned handwritten materials, but ignored it
(7340-44), and the Court admitted both handwritten and printed materials
without authorship or adoption by the defendants. Anything about guns, poisons,
or explosives, even though not of the type alleged to have been used in the WTC
explosion (7226-27, 7271, 7377-78) was admitted, as according to the Court,
books about gas chambers would be admitted against Nazis who used them (7243, 7231-43).
The documents and literature were translated into English and read to the jury.
The jury thus heard and was led to hold against appellant the *42 fanatical
religious and racist phrases of warfare associated with Muslims espousing
fighting against Zionism with Uzis and M-16s (7349), terrorism as a religious
duty for those facing the enemies of God (7249), Jihad as a war against Jews
who kill Muslims (7355), revolt and liberate Palestine, with hand grenades,
sabotage and blockades (7355, 7391-98). struggle against the terrorism of the
Mossad [the Israeli intelligence service] and the enemy Zionism (7413),
"In the name of Allah" using explosives (7431-32), advocating Jihad
by combat and pistols (7455) manufacturing explosives "In the name of
God" (7436), gaining explosives knowledge in the struggle against Zionists
(7443), Palestinian brothers fighting against the enemy Zionism (7445), using
money and forged documents and advocacy by the World Assembly of Muslim Youth
(7451-53), the necessity for a military organization against the hostile
powers, the Christians, Zionists and the United States who conspire against
Islam (7455), shock troops and self-sacrifice for Jihad (7459), Masons as
secret Jewish terrorists (7465), pistols, bullets, shooting associated with an
encyclopedic listing of Muslim sects (7463-64), terrorism as a religious duty
of Muslims (7470), and America is against the Muslim, Jewish arrogance
conspires against Jihad (7477-78). A videotape found in Ajaj's luggage
contained voice overs advocating holy war against Jews, Christians and
Americans (7480-84). A second such videotape was played for the jury and it
showed what the prosecution purported to be the explosive destruction of the
American Embassy. In fact the scene was from "Death Before Dishonor"
a commercially available feature *43 film made in America and available in any
video store, and the embassy being destroyed is that of a fictional country
called "Jemel" (7485-7513, 8216). The prosecution was also permitted
to introduce a blow-up of one frame from the video purporting to show an
American flag over the fictional embassy (7506).
Other purely prejudicial evidence with no evidentiary foundation
or relevance to the issues included Willie Moosh's testimony that the yellow
van and accompanying limousine hesitated before leaving his gas station because
a police car was passing (4008-10); the testimony of FBI agent Traficante that
she seized a photograph of appellant from co-appellant Ayyad's house because
prior to the search, "we were told that anybody dealing or related or in
connection with the bombing, they tend to hold any photographs ... they tend to
keep any photographs or any other evidence of the bombing at their home"
(6011- 12); and the introduction of Salameh's immigration documents, long
predating the conspiracy, merely to prejudice the jury against Salameh because
he made inconsistent statements on the documents (2710-11, 2739-43, 2759-62,
2756-80). To create the impression that Ramzi Yousef had fled the country on
the day of the explosion under an assumed name, the prosecution introduced,
over objection, the February 26 airplane ticket and passport photo of someone
named Abdul Basit, whom no one in the courtroom, including the Judge, could say
looked like Ramzi Yousef (5497-5504, 5509-11).
The prosecution was permitted to introduce a videotape of an
exploding van ostensibly for demonstration purposes, but there was no
foundation laid that the same *44 chemicals in the same quantities alleged to
have been housed in the van at the World Trade Center were used in the demo
van: the detonator chemical was concededly of a different type than the one
allegedly used at the World Trade Center; and there was no attempt in the
demonstration to even approximate the structure and environment of the area
around the explosion at the World Trade Center. The Court replied to these
objections, "Yes, but I will let it in." (7944-48, 7976).
A Secret Service agent testified that he was walking in the
parking garage of the World Trade Center at the time of the explosion and that
just before the blast he saw a yellow van parked where the prosecution's expert
would later deduce a yellow van containing the explosives was parked. The
Secret Service agent was debriefed by the FBI on the day after the explosion
and provided many details of what he saw, but said nothing about a yellow van
(269-298). The Court ruled that the prosecution could not introduce as a prior
consistent statement the fact that the agent did mention the yellow van to
another Secret Service agent two days after the explosion (303-306), but when
the other agent testified, the Court allowed that testimony (323-329). The
second agent, who was with the first one at the time of the blast, observed
many yellow vans in that garage (340).
IX. Jury Selection: Islamic Bias Voir Dire Denied Despite
Prosecution Attribution to Defendants of Literature Advocating Religious Wars
in the Name of Islam
The Court denied defense requests for inquiry of the prospective
jurors to elicit racial and religious biases regarding Islam, Islamic
fundamentalism, and the effects of *45 media depiction of Muslims. The Court
agreed to ask only whether the jurors had traveled to the Mid-East, whether
they had any Muslim fiends, and whether they believed Muslims should be treated
differently. The Court's rationale for denying a searching inquiry into what
the jurors understood and believed about Islam and Muslims was that
"religion is not on trial" (386). The defense protested that the
prosecution would put religion on trial, in effect, when it introduced all the
literature seized from Ajaj's luggage exhorting Muslims in the name of Allah to
engage in war against Jews, Christians, and the United States (See Section
VIII, supra). The Court repeatedly denied the requests for bias voir dire in
general and voir dire of particular jurors, and also denied challenges for
cause to a juror who believed the defendants were guilty but said she could be
fair (346-48, 362), and to a woman whose Jewish boyfriend might be disturbed at
anti-semitic writings (1170- 71), and to a priest (1232-35), (346-68,
1170-1290).
X. The Denial of Severance: The Precht Summation Arguing Ramzi
Yousef's Plan to Bomb
Appellant had moved for severance prior to trial. The motion was
reiterated, along with a motion for mistrial, when the hate literature and
video tapes seized from co-defendant Ajaj were entered into evidence by the
prosecution and by Ajaj himself (Section VIII, supra). A motion for a mistrial
was again necessitated when Robert Precht, attorney for co-defendant Salameh,
argued that the fugitive Ramzi Yousef had indeed planned the bombing of the
World Trade Center, that he had entered the country with such a plan, and that
Salameh *46 had participated in the bombing, albeit unknowingly. This argument
effectively convicted appellant against whom there was substantial evidence of
association with Yousef, but, except for Precht's summation, no evidence that
he or Yousef knew about a plan to bomb the World Trade Center or other
buildings (8630-32, 8669, 8532, 8530-8626). The trial Court wrote in another
context, "each of these defendants presented conflicting defenses at
trial" (United States v. Salameh, 856 F.Supp. 781 (1994). At oral argument
in this Court on appellant's petition for a mandamus to allow counsel of choice
to represent him at sentencing, the prosecution represented that conflicting
defenses were presented throughout the six months of trial. (See tape recording
of oral argument, May 3, 1994, In Re Abouhalima, 94-3038).
XI. Jury Deliberations: Court Excision of Relevant Defense
Testimony from Read-Backs Requested by the Jury
During deliberations, the jury asked for read-backs of the
testimonies of the witnesses who observed tenants and visitors at 40 Pamrapo,
the building where the prosecution claimed the explosive chemicals were mixed
(9228). The superintendent had testified that Salameh and Yousef were the
tenants and that "a big guy" who drove a black Lincoln visited
(3335-79). Although appellant was not identified by the super, a further described,
the prosecution argued that appellant was the big guy. The jury heard that
testimony read back, but the Court refused to allow the jury to hear again the
super's testimony that he never saw the big guy inside the apartment, that
another tenant drove a big Lincoln Continental (3383-*47 3384), that he did not
see Salameh move out, (3385) he only received the keys from Salameh on the last
day (3385-86) and that he, the witness, was interviewed repeatedly by the FBI
and the news media (3374-75) (9235).
A tenant at 40 Pamrapo testified that a man with the
"weirdest" red hair, who dressed like a chauffeur, visited the
building several times a week and once "barked" at the tenant who
wore a lumberjack shirt (3386-3432). The jury heard the testimony again, but the
court refused to let them hear again that the man with the weird red hair was
not in the courtroom (3891-92), that only the man in the lumberjack shirt lived
in the apartment in question (3388), and that the witness saw lots of other
cars at the building and couldn't describe the drivers (3419-3424) (9235-36).
The jury also asked to hear again the testimony of the roommate of
Salameh and Yousef at the Virginia Avenue apartment about the visitors to that
apartment (9228). The jury thus heard again that appellant visited Salameh and
Yousef there, in the bedroom with the door closed (2839-97), but the Court
precluded them from hearing again that the witness lived and studied in the
living room, therefore the closing of the bedroom door by Salameh's visitors
was courteous to him (2888), that the witness was nervous during his testimony
and when the FBI interviewed him in hand cuffs and with a gun to his head, that
the FBI took his green card and refused to return it until after his testimony,
that his citizenship has been delayed since the FBI started questioning him
about the case, and that his description of appellant as red-haired did not
appear in *48 FBI reports (2882-88, 2890, 2894-95, 2896-97). The Court did
allow the jury to hear again that the FBI did not pressure the witness to make
anything up (2895) (9236).
XII. The Sentence: Denial of Counsel of Choice and Effective
Assistance of Appointed Counsel; Illegal Sentence and Appearance of Bias the
Court
On March 4, 1994, the defendants were found guilty on all counts.
Shortly thereafter they discharged their lawyers and retained the firm of
Kunstler and Kuby to represent them. Kunstler and Kuby filed a notice of
appearance on April 12. At proceedings on April 15, outside the presence of
appellants and without permitting counsel to speak, the Court disqualified
Kunstler and Kuby (See transcripts of proceedings those dates and the Court's
order entered June 14, 1994). The defendants petitioned for a writ of mandamus
from this Court directing that Kunstler and Kuby be permitted to represent
them. At oral argument on the petition on May 3, 1994, this Court questioned
whether the District Court had been in error in disqualifying appellants'
lawyers of choice without a hearing, but upon representation by the prosecution
that it would return to the District Court and request the hearing, mandamus
was denied. In Re Abouhalima, No. 94-3038, decided May 3, 1994.
The trial Court set sentencing for May 24, and began to contact
Criminal Justice Act panel members to act as stand-by counsel for the
defendants. When the undersigned was contacted by the Court's chambers, he
indicated a willingness to aid the Court if he could and if the defendant would
accept him as counsel. To that end he attempted to contact defendant by
telephone at the federal penitentiary at Lewisburg, *49 Pennsylvania where all
the defendants were sent after the verdict. On May 10, a telephone conference
was finally arranged and appellant agreed to the undersigned's representation
as long as he would be given additional time by the Court to learn the case and
to adequately prepare for a motion for new trial and sentence (See letter of
May 16, 1994, from Lawrence Mark Stern to the Court).
Counsel telephoned chambers on May 11, and informed the Court that
with appellant's consent, counsel could now accept the assignment. He was
officially appointed as of May 10, the date of the CJA appointment voucher, and
filed a Notice of Appearance on May 20. He asked in what form the Court wanted
a request for an adjournment to enable counsel to obtain the transcript, which
had been provided to private trial counsel under CJA but which private counsel
refused to turn over to new counsel, to interview the defendant, and to learn
the facts and make the requisite legal analyses for both sentencing and a
possible motion for a new trial based on trial counsel's ineffectiveness. New
counsel was told that there would be no adjournment. New counsel then wrote the
Court on May 16 that without an adjournment, he could not effectively represent
appellant. Counsel wrote that appellant needed an Arabic translation of the
Presentence Report. Counsel estimated that several months, to September, 1994,
would be necessary to obtain the record, to conduct any investigation on a new
trial motion, and to get ready for sentence. Counsel invited the Court to
appoint other counsel if no adjournment would be granted (Ibid).
*50 At the sentence proceedings la??held on May 24, the Court
acknowledged receipt of counsel's May 16 letter, and a follow-up letter of May
20, and ag?? denied an adjournment of any length because an adjournment to
September "is not the way the system works" (Transcript, May 24, 1994
at 9-10, 15-16). A request for adjournment on the same grounds by new counsel
for Nidal Ayyad, who also had been appointed on May 11, was denied (Id at 6-8).
New counsel for appellant Salameh had never been authorized to represent him at
sentencing (Id at 3-5). New counsel for appellant Ajaj, had been appointed on
April 26, had no difficulty obtaining the record from CJA trial counsel, and
was representing a defendant against whom the only evidence was his arrest with
bomb-making literature six months before the explosion and his continuous
incarceration until after the explosion. She also asked for time, which was
denied (Id at 12- 13).
Prior to sentencing, new counsel wrote to the Court that he had
visited appellant and conveyed to appellant the Court's intention to deny an
adjournment and that appellant would therefore represent himself (Stern letter
of May 20, 1994). Counsel reiterated in the letter that appellant claimed
substantial grounds for a new trial motion which required time for
investigation and briefing. Counsel also set out several Constitutional,
statutory, and Guideline arguments for a reduced, sentence for appellant, and
he stated appellant's joinder in any points raised by his co-defendants. Among
the points thus raised were that the Court should reconsider its
disqualification of Kunstler and Kuby or hold a *51 hearing, that the murder
Guideline was inapplicable because appellant had not been convicted of murder
and there was no evidence of such acts or intentions, that the limited evidence
against appellant of mere association and other factors should move the Court
to downwardly depart, that consecutive sentencing under 18 U.S.C. ¤ 924(c) and
the other statutes would amount to double punishment violative of double
jeopardy and due process, that a term amounting to life would require a jury
recommendation under 18 U.S.C. ¤ 34 and ¤¤ 844(d), (f), and (e), and that
appellant's travel to Saudi Arabia did not justify an additional two points for
obstruction of justice (Stern letter May 20).
An additional point he raised by joinder with a point raised by
defendant Ajaj was that minimal participation should have required a reduced
offense level (Ajaj Sentence Memo at 13). Had appellant had time to prepare he
should as well have attacked the conditional imposition of 250 million dollars
in restitution and the fine of $250,000 which he has no means to pay.
At sentencing the Court acknowledged receipt of the letter
containing appellant's points, and denied them (Transcript, May 24, at 9-10-,
15-16, 52). The Court also stated that the Presentence Report played no part in
his decisions in regard to sentencing and that he relied solely on his own
memory of the trial. Counsel reminded the court that he had not been at the
trial, had been refused the transcript, and had not been granted time to get a copy
and to read it (Id at 9-10, 51-52).
*52 Appellant again requested a translation of the Presentence
Report, and in response to the Court's claim that, despite the use of
interpreters throughout the trial appellant knew enough English to understand
the Report, appellant explained that there were limits to his understanding and
many legal terms and other phrases were unfamiliar to him (Id at 11, 14-15).
The other defendants also requested translations (Id at 12-13).
The Court concluded from its erroneous memory of the record that
there was evidence that the defendants had planned to topple the North Tower of
the World Trade Center into the South Tower and that they used sodium cyanide
in the bomb to ensure the deaths of everyone in the towers, but that the cyanide
burned off instead of vaporizing and caused permanent scarring of lungs instead
of death (Id at 36-37). The Court called defendant Ayyad a "cowardly
hypocrite" (Id at 50), defendant Salameh a "sneak and coward"
who has a sense of achievement in the bombing and who has violated the laws of
God (Id at 39), defendant Ajaj the lowest of the low (Id at 115), and appellant
Abouhalima "a sneak and a coward." (Id at 65).
The Presentence Report informed the Court that appellant's wife
was on public assistance and that because the government refused to uncuff
appellant so that he could sign financial disclosure forms, additional
financial information was unavailable (p.35). The Report also informed the
Court that restitution was impossible, and "well beyond the means of the
defendants." (p.39).
The Court imposed sentences on each defendant of 240 *53 years
total imprisonment, fines of $250,000 each, assessments of $500 each, and
restitution of $250,000,000 each should they write a book and sell it (Id at
39-41). The term of years was arrived at by expressed disregard for the
Guidelines and a reference to the statutory "term of years" as
permitting the compounding of the life expectancies of the six people killed in
the explosion, 180 years, and adding two consecutive terms of 30 years each
under 18 U.S.G. ¤ 924(c) (Id at 39-40).
SUMMARY OF ARGUMENT
There was no direct or circumstantial evidence that appellant
participated in, planned, intended, or had knowledge of a plot to blow up the
World Trade Center or any other buildings, and no evidence that he embraced an
agreement with anyone else which included such objectives. The wholly
circumstantial evidence against appellant amounted at best to proof of
association, and much of it was irrelevant and prejudicial, violative of due
process, rights to counsel and against self-incrimination, and the rules of
evidence.
Appellant was also denied a fair trial, an impartial Court, and
due process of law, and the rules of evidence were violated, when the
prosecutor misrepresented the evidence in opening and summation and the Court
precluded read-backs of relevant testimony requested by the jury, when the
prosecutor challenged the jury to find guilt in "the single most
destructive act of terorism in the United States", and in effect testified
in summation that a witness' testimony was other than is reflected in the
transcript, and when the prosecutor argued in summation that he had proved
guilt because appellant had failed to adduce evidence of the *54 exculpatory
inferences which could be drawn from the prosecutor's case.
Appellant was also denied a fair trial, due process, an impartial
court, and the Constitutional rights to grand jury indictment and notice when
the Court charged that circumstantial evidence is what everyone knows about a
bully, that "piles of stuff" not in evidence were found in
appellant's apartment therefore defense counsel wrongly argued that only one
relevant piece of literature was found there, and that proof of guilt of
conspiracy to bomb the World Trade Center did not require evidence of specific
intent and knowledge.
Appellant was also denied a fair trial, due process,
cross-examination, effective assistance of counsel, and an impartial court when
the Judge made an ex parte agreement with the prosecutor to withhold
exculpatory evidence and misrepresented that a government witness was not a
paid informant on this case, when the prosecutor made the same
misrepresentation to the jury, when the Court concealed from the defense
another witness' perjuries about his criminal record, and when the court
precluded cross-examination about the tactics of intimidation used against a
third prosecution witness.
Appellant was further denied a fair trial and due process when a
witness identified a juror as the man who paid for the gas for a Ryder van
which allegedly was used hours later as the container for the bomb, but the
prosecutor was allowed on redirect examination of the witness to elicit an
identification of appellant instead of the juror after showing the witness a *55
suggestive photospread.
Appellant was further denied a fair trial, cross-examination, due
process, and an impartial court when the Court interrupted cross-examination on
the subject of a witness' lie that the witness had not changed his testimony
after speaking to the prosecutor, and when the Court gave instructions in open
court ignoring the lie and stating that "there is nothing wrong" and
"it is required" to have such talks and supplying testimony that the
prosecutor told the witness "not the exact words ... basically what he was
going to ask you, yes?" The prosecutor was also improperly permitted to
repeatedly ask the witness the same question despite the witness' denials of
the answers he later gave after the break in the direct examination and the discussion
with the prosecutor.
Despite stipulation to the death and injury which resulted from
the World Trade Center explosion, and notwithstanding that intent to cause
death was not an element of the offenses charged, and that hate literature was
unsigned, unauthored, unauthenticated, unauthorized and not found in the
possession of appellant, five days of detailed victim witness testimonies of
the horrors they experienced after the explosion, gruesome autopsy photographs
and concomitant medical examiner testimony, and hate literature against the
religions and nationalities of the jurors were introduced and deprived
appellant of a fair trial and due process of law.
In this sensational case involving allegations of violence
committed by Muslim fundamentalists and given the history of media attention to
such cases going back to the Iran *56 hostage crisis and notice to the Court
during jury selection that hate literature would be introduced into evidence,
the Court denied appellant an impartial jury and a fair trial by refusing a
probing voir dire of the jury's bias against Muslims and how the jury would
react to such literature.
The Court's refusal to grant a severance or to declare a mistrial
due to the introduction against appellant of hate literature possessed by a
co-defendant, and due to another co-defendant's summation conceding that an
associate of appellant's planned the bombing of the World Trade Center, denied
appellant a fair trial and due process of law.
Appellant was denied counsel of choice at sentencing, because the
Court refused to hold the required Curcio hearing and there was no conflict of
interest. Appellant was denied effective assistance of assigned counsel at
sentencing because new counsel, who had not tried the case, was assigned only two
weeks before sentencing, was refused the trial record which consisted of 10,000
pages and could not be read and analyzed anyway in the two weeks allotted, the
Court refused a continuance, and appellant had substantial grounds to object to
the Presentence Report and to move for arrest of judgement, dismissal and a new
trial which new counsel did not have time to investigate and to present to the
Court.
The sentence imposed was violative of statutes, guidelines, due
process, and double jeopardy, because the Court did not make individual
sentencing judgments among the four defendants; expressly ignored the
Presentence Report which, in any case, contained factual errors which should
have been *57 corrected; the Court relied on erroneous factual assumptions, expressed
personal animus against the defendants, erroneously applied the murder
guideline in a case where intent to kill was not an element; refused to
consider a downward departure, mitigating factors, or a minimal role reduction;
pyramided consecutive sentences for use of an explosive device, upwardly
adjusted for obstruction of justice for flight to avoid arrest, and imposed
fines and restitution on an indigent defendant without consideration of the
factors set forth in 18 U.S.C. S 3664, notwithstanding the inability of
defendant to make the restitution within the five year statutory period, the
compensation by insurance, and the mere speculation that appellant might write
a book.
ARGUMENT
POINT I
THE EVIDENCE AGAINST APPELLANT WAS IRRELEVANT, PREJUDICIAL,
VIOLATIVE OF DUE PROCESS, RIGHTS TO COUNSEL AND AGAINST SELF-INCRIMINATION, AND
THE RULES OF EVIDENCE, AND INSUFFICIENT AS A MATTER OF LAW
According to the prosecution's witnesses, appellant was not seen
at the so-called "bomb factory" at 40 Pamrapo Street in Jersey City.
He was not seen at the Space Station Storage Locker where chemicals were found.
He was not seen at the World Trade Center. No witnesses testified that he was
at these places or that he had inculpatory conversations on the telephone or elsewhere
of any sort. There was no evidence that he had anything to do with the rental
of the van which allegedly housed the bomb, or that he committed any other
knowledgeable acts in furtherance of a bombing. There are no *58 inculpatory
post-arrest statements. There are no documents by him, or in his handwriting,
or endorsed by him concerning plots, bombings, or anti-American, anti-Jewish
ideas or feelings. In sum, there is no direct or circumstantial evidence that
appellant participated in, planned, intended, or had knowledge of a plot to
blow up the World Trade Center or any other buildings and no evidence that he
embraced an agreement with anyone else which included such objectives.
At most what the prosecution did establish, in addition to all
these negatives, was that appellant knew others charged in the case, and that
he was with them on certain occasions. It is undoubtedly this single fact which
caused his arrest in the first place. The trial strategy of the prosecution
thereafter was to introduce as much information about him as possible and to
put it all before the jury in the context of the fear of terrorism which
permeated the trial, and thereby to give a suspicious cast to a quantity of
disconnected facts and the appearance of guilt. Under this Court's objective
analysis, however, association and presence under suspicious circumstances do
not establish conspiratorial guilt. United States v. Jones, 30 F.2d 276, 281-
282 (2d Cir., 1994); United States v. Gavira, 740 F.2d 174, 184 (2d Cir.,
1984).
On this kind of evidence, however, in the context of the
prosecution's misrepresentations of it in summation, a charge which likened
appellants to "bullies", the Court's misrepresentation of the bias
and motivations of a witness, the introduction of a parade of victims, autopsy
photographs and *59 inflammatory literature which was not connected to
appellant, the other instances of unfair trial briefed in the succeeding
points, infra, and the pressure on the jury to reach a verdict against what the
prosecution challenged them was "the single most destructive act of
terrorism ever committed here in the United States" [FN10] (16), appellant
was convicted and sentenced to prison for life without parole.
FN10.
This statement by the prosecution casting a fear of terrorism over the entire
trial should have moved the Court to grant a mistrial (38-42), instead the
atmosphere was fostered throughout (see Points, infra), and the jury was
paralyzed. United States v. Solivan, 937 F.2d 1146 (6th Cir., 1991).
Contrary to prosecution representations to the jury in openings
and summation, appellant was not the red haired man outside the so-called
"bomb factory" apartment giving "orders." The witness who
saw the man with the "weirdest" red hair testified that that man was
not in the courtroom during the trial (3386- 92). The witness also testified
that he didn't understand the language the red haired man was using, but the
Court allowed the witness to supply his ideas of the meaning of the
conversation anyway.
Appellant was not the man who helped Salameh and Yousef rent the
"bomb factory" apartment in Jersey City. The witness to that
statement testified that appellant's brother, Mohammad, who is red haired,
looks like appellant and drove a limousine, helped rent an apartment which was
in Newark, not in Jersey City (2861, 5605-06, 5542, 8968).
Appellant did not mention Ramzi Yousef's nickname, *60 Rashed,
spelled with an e, on the airplane ride back from Cairo; he mentioned the name
Rashid, spelled with an i, and stuck to it even when the Detective tried to
move him toward Rashed. The prosecution even acknowledged that the name Rashid
is different than the name Rashed, that one of their witnesses, Ashraf Moneeb,
a roommate of Salameh and Yousef, used the name Rashid (9043). Nor did
appellant first mention Pamrapo Street in response to a question about the
World Trade Center; the Detective brought up the name of the Street without
mentioning World Trade Center, and appellant, who lived in that Arab community,
corrected the pronunciation (5957-82). Denial of voluntariness hearing denied
Fifth and Sixth Amendment rights 18 U.S.C. ¤ 3501; Miranda v. Arizona, 384 U.S.
436 (1966); see also the Motion for Review or Remand.
Appellant did not make the telephone calls charged to his credit
card, and there were no recordings and no witnesses to the conversations to
which the prosecution attributed sinister content without evidence. The credit
card was being used without appellant's authorization. Prosecution evidence
established that the phone company was notified of the fraud weeks before the
explosion and again on the day of the explosion when the phone company conceded
appellant would have first received the bill (6545-57).
Appellant did not purchase a refrigerator for use to house explosives
at the Pamrapo Street apartment. The refrigerator was found at a location
unconnected to the "bomb factory"; the prosecution introduced no
evidence that the refrigerator was ever at the Pamrapo Street apartment; the
receipt for the refrigerator was not introduced in evidence, and, at best, it
showed only that appellant had purchased the *61 refrigerator two years before
the explosion.
A commercially available Arabic magazine about the Afghani
resistance movement was found somewhere; the prosecution did not adduce that it
came from appellant's house, but appellant's fingerprint was on an article
about bombing buildings as part of the Afghani resistance, the only fingerprint
of appellant's discovered among the hundreds of thousands of items and scores of
places examined for prints in this case. This fingerprint and the discovery of
microscopic sulfur ions on one of appellant's shoes, the only item to contain
such traces among reams of clothing seized from his apartment and the chemical
swabbing of his automobile, could have established at trial guilt beyond a
reasonable doubt of participation in a plan to blow up the World Trade Center,
and buildings like it, only if a presumption of guilt had preceded the
analysis.
The prosecution will argue that on appeal it is entitled to all
the inferences in its favor, that the shreds introduced below are sufficient on
appeal to sustain a verdict on the whole cloth. However, even on appellate
review, the prosecution is only entitled to those inferences with substantial
evidentiary support and which legally, logically, and reasonably are capable of
supporting a verdict of guilt beyond a reasonable doubt (United States v.
Carson, 702 F.2d 351, 361 (2d Cir., 1983); United States v. Manton, 107 F.2d
834, 839 (2d Cir., 1938)), and "charges of conspiracy are not to be made
out by piling inference upon inference, thus fashioning ... a dragnet to draw
in all substantive crimes." Anderson v. United States, 417 U.S. 211, 224
(1974), citing *62 Direct Sales Co. v. United States, 319 U.S. 703, 711 (1943).
The verdict will be sustained only if "the record evidence could
reasonably support a finding of guilt beyond a reasonable doubt." United
States v. Jones, 30 F.3d 276, 281 (2d Cir., 1994), citing Jackson v. Virginia,
443 U.S. 307, 318 (1979).
Here, only by a "piling of inferences" individually
"too thin" (United States v. Nusraty, 867 F.2d 759, 764 (2d Cir.,
1989) can the first level of material fact with regard to each piece of
evidence be achieved. For example, to reach the inference from the fingerprint
on the magazine article and the sulfur ions on the shoe that appellant helped
in mixing chemicals for the bomb, intervening inferences would have to be made
that he read the article, that he did so for a purpose unrelated to the other
articles in the magazine which were about warfare in a foreign country and had
nothing to do with bombing the World Trade Center, that the sulfur ions on the
shoe came from sulfuric acid and not magnesium sulfate or Epsom salts or other
chemicals commonly containing sulfur, that the sulfuric acid was from chemicals
used to mix the bomb and not from some other innocuous source, that the ions
were deposited on the shoe in the bomb factory or from direct contact with the
chemicals rather than from contact with others who may have transferred the
traces to him, that the chemical was deposited during mixing and not just by
virtue of proximity to splashing, and that at the time the sulfur ions get on
the shoe appellant knew and participated in a plan to use the chemicals to blow
up the World Trade Center, or at least buildings like it. (See Point III,
infra).
To reach the inference that appellant made or *63 received
telephone calls related to the bombing of the World Trade Center, the pile of
inferences about the content of the calls charged to his credit card must be
piled on the inference that he was a party to the calls and that he knew the
aim of the conversations, despite the total absence of evidence of the
substance of the calls and the affirmative evidence that he reported the calls
as unauthorized. Even in a case where the words of telephone conversations have
been proved, this Court has held in reversing a conviction for insufficiency,
"we are [not] permitted to read evil meaning into words usually having an
innocent connotation, absent proof (of which there is none here) that they were
part of a secret code." United States v. Terry, 702 F.2d 299, 321 (2d
Cir., 1983). Here there were only phone records listing calls, no words at all,
and the assessment of the viability of the inference of the ultimate fact must
include the negating evidence that on February 8, 1993, even before most of the
calls were made, appellant notified the phone company that his card was being
fraudulently used. United States v. Cassamento, 887 F.2d 1141, 1156 (2d Cir.,
1989); United States v. Johnson, 513 F.2d 819, 821-23 (2d Cir., 1975).
To infer beyond a reasonable doubt that appellant paid for the gas
for the van knowing that it housed the bomb to be used to blow up the World Trade
Center, a pyramid of inferences must be constructed. First, it must be inferred
that it was appellant. The gas station attendant also picked a juror. A
conviction cannot be based on an inconclusive identification. *64United States
v. Fredericks, 857 F.2d 733 (11th Cir., 1988). Then, without evidence, it must
be inferred that the van contained the bomb when it pulled into the gas station
[FN11], that appellant knew that it did, that his purpose in accompanying it
was to blow up the World Trade Center, or at least a building like the World
Trade Center, (see Point, III(C), infra). "What is missing is any evidence
that [appellant] knew that a [bomb] was couched behind the doors of the Ryder
truck. That knowledge is an essential element of the conspiracy charged,
without it the conviction must fail." United States v. Wexler, 838 F.2d
88, 91 (3rd Cir., 1988). It must also be inferred that appellant knew that he
was paying for the gas for the van. The gas station attendant, Moosh, testified
that he had had no conversation with the driver of the car about paying for the
gas for the van. He merely approached the driver of the car for payment, and
the driver gave him 21 dollars and told him to keep the change (4008-09). That
amount was not inordinate for filling up the car alone. Although the driver of
the van had referred Moosh to the driver of the car for payment, the referral
was done at the van outside earshot of the car.
The prosecution conceded that the smokeless powder found in the
Space Station Storage locker was not the same *65 powder appellant purchased
two months earlier at a gun shop near his home, thus nothing could be inferred
from appellant's purchase.
FN11.
The infinite chain of inferences preceding any such conclusion would have to
begin with the shard of metal with some numbers on it found a few days after
the explosion. As described in the Statement of Facts, supra, that chain of
inferences offered as evidence did not establish that the van rented by Salameh
housed the bomb at the time of the explosion. No evidence was even offered
about what was inside the van which pulled into the gas station eight hours
prior to the explosion.
There could be no inference that appellant was present at the bomb
factory, because the prosecution witness affirmatively discounted him. Also,
the description of the man seen there fits appellant's brother. Furthermore,
the red haired man was seen outside the apartment, not inside, and there was no
evidence that he knew about or participated in what was going on inside. A
neighbor and the super of the building noticed nothing suspicious about that
apartment, not even the noxious fumes generally associated with the chemicals
that were supposedly mixed there.
The prosecution emphasized in summation the testimony of Wahid
Moharam, [FN12] the owner of the limousine service who said he observed
appellant being nervous, praying, and then refusing to come to work in the days
following the explosion. But Moharam testified that appellant said that he had
a car accident. The prosecution's evidence supplied the innocent explanation,
therefore they could not rely on the negation of their own proof to supply a
contrary inference, particularly without other evidence. His leaving the
country soon thereafter is also explained in the evidence (See Statement of *66
Facts, supra, section I) and post-crime activities alleged as consciousness of
guilt are too ambiguous to supply gaps in the proof of the crime itself. United
States v. Johnson, supra.
FN12.
The prosecution, with the Court's assistance, concealed from the defense and
the jury, Moharam's status as an FBI informer who was paid for information
specifically against appellant as an associate of Sheik Abdel Rahman (See Point
IV, infra).
Thus, this is a case where analyzing the evidence "not in
isolation but in conjunction" (United States v. Geaney, 417 F.2d 1116,
1121 (2d Cir., 1969)) does not render it sufficient. Such an analysis depends
in the first instance on a set of established material facts which possibly can
be conjoined, if the logic of the inferences from those facts permits. In this
case, there are none, or very few, established material facts because, as
argued, a piling of inferences is necessary to conclude even the existence of
each one of them, i.e., that there was sulfuric acid on the shoe, that the
sulfuric acid came from chemicals used in the bomb, that appellant was the one
who paid for the gas for the van, that he did so with knowledge that he was
doing so, that the van housed the bomb at the time, that appellant knew it,
that telephone calls charged to his number were made by him or to him, that the
calls concerned subjects related to the bombing, and so on.
The prosecution cannot sustain its burden of proof by cross-referencing
piles of tenuous inferences, offering one set to support another set in a
bootstrapping of inferences, but this is how they constructed an argument to
the jury, in addition to misrepresenting what they had proved. For example,
they argued to the jury, as they will undoubtedly to this Court, that the set
of inferences, without evidence, that appellant was identified at the bomb
factory proves the set of *67 inferences that the sulfur ions on his shoe were
in fact from sulfuric acid from the bomb factory and vice versa. In fact,
neither set of inferences was grounded in evidence. The culmination of such
cross-referencing permits a verdict of guilt only in the context of an unfair
trial which fostered a predetermination of guilt.
Nothing is added to proof of appellant's guilt by the fact that he
bought a refrigerator two years before the crime, and that that refrigerator
found its way two years later into an apartment of a fellow Muslim unconnected
to the case. Without evidence that appellant was responsible for supplying that
refrigerator for use as the housing for explosives, his early purchase, which
was not even actually established because the receipt was not introduced in
evidence, was irrelevant or at best only further evidence of association. Yousef's
fingerprints and traces of explosive chemical on it were thus purely
prejudicial as to appellant.
The same can be said for appellant's visits to Salameh's Virginia
Avenue apartment where the bedroom door was closed to give themselves and the
roommate Moneeb privacy; for his recognition of the correct name of Pamrapo
Street and the name, Rashid, the middle name of Moneeb; for the facts that he
had a bank account in a different branch of the same national bank as Salameh,
that he visited at Attica prison with El Sayid Nossair, the man accused of
killing Rabbi Meir Kahane, that he bought gunpowder, that he didn't have guns
in his apartment, that he was nervous after an accident and that he had asked
to borrow a van in the weeks before the explosion. Over *68 objection, the
prosecution was permitted to compound these irrelevant, prejudicial facts to
give the appearance of suspicious weight to an otherwise non-existent case and
to deny appellant a fair trial. F.R. Evid. 401, 403; United States v. Harvey, 991
F.2d 981 (2d Cir., 1993); United States v. Afjehei, 869 F.2d 670 (2d Cir.,
1989).
Some of the pieces of evidence were also separately objectionable
on grounds in addition to irrelevance: the incompetent testimony about
"barking orders" by a witness, the tenant at 40 Pamrapo, who could
not understand the language of the person speaking (F.R. Evid. 701, 602)
[FN13], the opinion testimony of Moharam about appellant's state of mind
(Ibid), and the non-conspirator hearsay statement of Yousef to Moneeb that Mohammad
Abouhalima would help find an apartment. United States v. Lieberman, 637 F.2d
95 (2d Cir., 1980); United States v. Tarantino, 846 F.2d 1384 (D.C. Cir.,
1988).
FN13.
Evanston Bank v. Brinks. Inc., 853 F.2d 512 (7th Cir., 1988); United States v Whitworth,
856 F.2d 1268 (9th Cir., 1988)
An accumulation of weak inferences routinely lead the Courts to
reject convictions on sufficiency grounds. For example, in United States v.
Johnson, supra, this Court found that a defendant's presence in an automobile
used to transport drugs, his close association with the driver who pled guilty
to an importation charge and his false exculpatory statement after the a rest
did not support a conspiracy conviction. The Court held that presence at a
scene coupled with knowledge that a crime a being committed and evidence of
consciousness of guilt *69 was insufficient to establish membership in a
conspiracy. Here, the case against appellant is no better than the one
presented in Johnson. Even accepting arguendo the material facts of appellant's
presence at 40 Pamrapo and at the gas station, the evidence amounts to that of
the defendant's presence in the drug transport vehicle. Moreover, the
consciousness of guilt evidence in Johnson consisted of a false exculpatory statement
offered by the defendant to extricate himself from the incriminating
circumstances. In the instant case, the government does not even have proof
that the exculpatory explanations of appellant's actions and statements after
February 26 were false. Rather, they argue only from proof to the contrary to
suggest his attempt to distance himself from co-defendants.
Also, in United States v. Gavira, 740 F.2d 174 (2d Cir., 1984),
this Court overturned a conviction for conspiracy to distribute cocaine where a
defendant, in a suspicious manner, lied about her presence in the apartment and
her use of a rental car around the time that drug transactions occurred and a
seven gram bag of cocaine was found on the rear passenger side floor of her
car. In the instant case, appellant's arguable presence at various
incriminating locations with co-defendants, his attempts to dissociate from
them, and the implication that he touched a substance that may have been used
by co-defendants to construct a bomb clearly does not exceed the quantum of
proof in Gavira.
Other Circuits have also rejected convictions based on elaborate
circumstantial cases premised on mere association *70 or presence padded by
suspicious circumstances and innuendo. See e.g., United States v.
Aponte-Suarez, 905 F.2d 483 (1st Cir., 1990) (knowledge of drug importation
scheme, offering of use of farm for airstrip to land airplanes with illegal
narcotics, and introduction of conspirator to third person who did furnish
airstrip insufficient to establish participation in narcotics conspiracy);
United States v. Coleman, 811 F.2d 804 (3d Cir., 1987) (longtime association
with defendant on trial and knowledge of pending prosecution, renting of room
where murdered witness found, agreement to testify as character witness for the
defendant on trial, and inconsistent statements about purpose for renting room
insufficient to establish co-conspiratorial liability in plot to kill witness);
United States v. Sarro, 742 F.2d 1286 (11th Cir., 1984) (presence during sale
of what was known to be stolen paintings between co-defendant and undercover
agent in hotel room and conversations about interstate transportation of
paintings, frisking agent and searching room, and accompanying agent into
bathroom to examine paintings was insufficient to establish intent to join
conspiracy to transport stolen paintings interstate); United States v.
DiSimone, 660 F.2d 532 (5th Cir., 1981) (arrest with co-defendants at secluded
airport in early morning hours near airplane loaded with marijuana and near
rental car ditched on airport exit road, and seen in presence of co-defendants
preceding afternoon insufficient to sustain conspiracy conviction); United
States v. Villegas, 911 F.2d 623 (11th Cir., 1990) (defendant who was brother
of co-conspirator and was present in vicinity of drug transactions, accompanied
*71 brother to transaction in separate vehicle, looked back and forth during
transaction to perform counter-- surveillance, stood by car with hood up and
watched transaction from a short distance and provided false statement about
engine trouble to explain open hood was insufficient to link defendant to drug
conspiracy).
Even if the prosecution had established appellant's association,
presence, and his knowledge that explosive chemicals were being mixed, stored,
and transported, they still failed to adduce direct or circumstantial evidence
that appellant entered into, or otherwise embraced, a conspiratorial agreement,
let alone one to bomb the World Trade Center, or a building like it. It is not enough
that appellant associated with others or that the evidence "places the
defendant in a climate of activity that reeks of something foul." United
States v. Sacerio, 952 F.2d 860 (5th Cir., 1992). It is not enough that
appellant accompanied the van and paid for the gas; this single act does not
evidence the embrace of a conspiracy to bomb the World Trade Center. United
States v. DeNoia, 451 F.2d 979, 981 (2d Cir., 1971); United States v. Anderson,
981 F.2d 1560 (10th Cir., 1992) (making a delivery for conspirators is not a
sufficient act of agreement).
Appellant was charged under 18 U.S.C. ¤ 371 with a conspiracy
requiring willfulness, the making of an agreement with the specific intent to
commit the underlying crime. United States v. Marchese, 438 F.2d 452 (2d Cir.,
1971). Thus, even if the evidence had supported the conclusion that appellant
intended to bomb something, there was no evidence *72 that he and his
co-defendants had agreed prior to the explosion to bomb any particular target
or type of target, let alone the World Trade Center. See United States v.
Davis, 965 F.2d 804 (10th Cir., 1992). Although the Judge erroneously charged
the ??ry that knowledge of a plan to bomb the World Trade Center was not
prerequisite to conviction (See Point III, infra), the jury nonetheless had to
find from the evidence beyond a reasonable doubt that there was a meeting of
minds on some specific target or type of target. The completed object must have
been within the scope and reasonably foreseeable consequences of any agreement
appellant had made.
A conspiracy conviction requires that one agreed to commit an
unlawful act and intended to commit the underlying offense ... intent to commit
the underlying offense requires that one had 'knowledge of the illegal
objective contemplated by the conspiracy.
United States v. Salmon, 944 F.2d 1106, 1113 (3rd Cir., 1991).
Here, the underlying offense as charged in all the substantive counts, and, as
argued by the prosecution in opening and summation, the knowing object of the
conspiracy for each of the defendants (19,8302, 8501) was the bombing of the
World Trade Center. Because the evidence in the case did not provide a basis on
which to found a conclusion of appellant's prior agreement on that object, or,
on any target, appellant could have been convicted even though he believed that
junked cars or an abandoned warehouse was to be bombed as training for the
Afghanistan resistance, while one or more of his co-defendants had decided that
a populated center city business office would finally be the target. These are
intentions of far different kind, and in the absence of evidence of specific
agreement *73 prior to the explosion, a meeting of minds cannot be inferred.
United States v. Nusraty, 867 F.2d 759 (2d Cir., 1989) United States v.
Terselich, 885 F.2d 1094 (3d Cir., 1989); United States v. Wexler, 838 F.2d 88
(3rd Cir., 1988); United States v. Salmon, 944 F.2d 1106 (3rd Cir., 1991).
Appellant is thus not guilty of the conspiracy, and not guilty of all the
substantive offenses which were not established by the evidence to be within
the scope and reasonably foreseeable consequences of the agreement, if any,
that appellant had made. Pinkerton v. United States, 328 U.S. 640 (1946).
POINT II
THE PROSECUTION'S MISREPRESENTATIONS IN OPENING AND SUMMATION,
COMPOUNDED BY THE COURT'S DELETIONS OF RELEVANT TESTIMONY FROM READ-BACKS
REQUESTED BY THE JURY, AND THE PROSECUTOR'S TESTIMONY AND VOUCHING, INFLAMING
THE JURY WITH THE FEAR OF TERRORISM, AND SHIFTING THE BURDEN OF PROOF DEPRIVED
APPELLANT OF A FAIR TRIAL
The prosecutor misrepresented the evidence in summation, and the
Court deleted from the jury's requested read-backs the testimony which
contradicted him. The combination of the prosecutor's summation and the Court's
deletions resulted in the jury hearing the exculpatory testimony only once,
months earlier when it had originally been given by the witnesses, but hearing
the prosecution's misrepresented versions emphasized just prior to and during
deliberations.
The prosecutor's misrepresentations in opening and summation
repeatedly claiming evidence that did not exist, i.e., that appellant had been
identified by the witnesses at 40 Pamrapo Street, the so-called bomb factory,
and by the witness *74 Moneeb as the man Yousef said helped him find the
Pamrapo apartment, that appellant carried buckets of chemicals out of Pamrapo,
that he used Yousef's name when questioned on the airplane after being taken
into custody in Egypt, that he used the name in response to an invitation to
comment on the World Trade Center bombing, that he gave no explanation for his
nervousness the night after the bombing, etc. (See Statement of Facts, supra,
Sections I and II) are themselves, egregious enough to require reversal. United
States v. Valentine, 820 F.2d 565 (2d Cir., 1987); United States v. Perholtz,
842 F.2d 343 (D.C. Cir., 1988); Guidroz v. Lynaugh, 852 F.2d 832 (5th Cir.,
1988); Gradsky v. United States, 373 F.2d 706 (5th Cir., 1967). The same
applies to the prosecutor's testimonial vouching that he knew that the witness
Moneeb meant to say that appellant Mahmud, not his brother Mohammad, as the
record reflected, had helped find the Pamrapo apartment. United States v. Dorr,
636 F.2d 117 (5th Cir., 1981); United States v. Diloretto, 888 F.2d 996 (3d
Cir., 1989); United States v. Shaw, 829 F.2d 714 (9th Cir., 1987). "A
prosecutor must scrupulously refrain from injecting his credibility into any
part of the trial. See e.g. United States v. Clark, 613 F.2d 391, 405 (2d Cir.,
1979), cert. den. 449 U.S. 820, 101 S.Ct. 78, (1980)." United States v.
Damsky, 740 F.2d 134, 138 n.3 (2d Cir., 1984).
Here, in addition, the read-backs were conducted in a manner which
fostered the prosecutor's misrepresentations and hence a distorted recollection
for the jury. The Court precluded, inter alia (See Statement of Facts, Section
XI) read-backs of the testimony that appellant was not the red *75 haired man
at 40 Pamrapo, that that person was not observed going inside the Pamrapo
apartment, and that the bedroom door of the Virginia Avenue apartment was
closed for an innocent purpose when appellant visited. The preclusion of
read-backs which clarify and which contradict prosecutorial misrepresentations
must be a due process violation worse than precluding read-backs entirely, and
the rationale for reversal in the latter case should hold for the former.
United States v. Criollo, 962 F.2d 241 (2d Cir., 1992). Furthermore, this Court
specifically holds that preclusion of read-backs is error when the prosecution
has misrepresented the evidence in summation. United States v. Damsky, supra.
The error was harmless in Damsky where the evidence was overwhelming. As argued
in point I, supra, the wholly circumstantial case here was thin at best, and
the prosecutor argued on the basis of the misrepresentation that appellant had
been identified at 40 Pamrapo, "to put him there is to convict him"
(8406). Nor is this a case where the court's preclusions were justified by
ambiguity in the jury's request and by further clarification obtained by the
Court. United States v. McElroy, 910 F.2d 1016 (2d Cir., 1990).
The prosecutor also sabotaged a fair trial by appealing to the
jury's fears and prejudicing them with the threat, based on no evidence, that
they were charged with deciding guilt for "the single most destructive act
of terrorism ever committed *76 here in the United States" [FN14] (16).
United States v. Johnson, 968 F.2d 768 (8th Cir., 1992); United States v.
Solivan, 937 F.2d 1146 (6th Cir., 1991); United States v Beasley, 2 F.3d 1551
(11th Cir., 1993). A motion for mistrial was denied, and in summation the
prosecutor reiterated, "Nearly a year ago the defendants launched a
devastating terrorist attack on the World Trade Center. They left death,
destruction, chaos, and horror in their wake." (8302).
FN14. Although the prosecution
introduced literature seized from the luggage of co-appellant Ajaj when he
tried to enter the United States six
months
before the explosion, there was no evidence that appellant, or even Ajaj
himself, adopted the ideas expressed (see Point VI, infra).
Finally, the prosecutor argued that appellant had not introduced
evidence that he had been "underneath the hood of his car, anywhere near
his battery let alone acid from within the battery", therefore the sulfur
ions on his shoe must have come from sulfuric acid at the bomb factory and not
a car battery (8408, 8424). This was an impermissible shifting of the burden of
proof, particularly prejudicial because although the Court recognized the
impropriety and promised a curative instruction in its final charge, it did
nothing to correct it (8424). (See Statement of Facts, supra). Griffin v.
California, 380 U.S. 609 (1965); United States ex. rel. Williams v. Lane, 645
F. Supp. 740 (N.D. Ill., 1986), aff'd 826 F.2d 654 (7th Cir., 1987); United
States v. Sehnal, 930 F.2d 1420 (9th Cir., 1991). Nor had defense counsel
invited the comment by suggesting in summation that there had been car battery
evidence. Rather, he elicited testimony in cross-*77 examination of the
prosecution's own chemist that sulfuric acid is present in car battery fluid.
Counsel was merely eliciting inferences consistent with innocence available
from the circumstantial evidence presented by the prosecution.
POINT III
THE COURT'S CHARGES THAT CIRCUMSTANTIAL EVIDENCE IS WHAT EVERYONE
KNOWS ABOUT A BULLY, THAT DEFENSE COUNSEL'S ARGUMENTS WERE WRONG AND THAT
"PILES OF STUFF" NOT IN EVIDENCE WERE FOUND IN APPELLANT'S APARTMENT,
AND THAT CONSPIRACY TO BOMB THE WORLD TRADE CENTER DID NOT REQUIRE SPECIFIC
INTENT AND KNOWLEDGE DEPRIVED APPELLANT OF THE CONSTITUTIONAL RIGHTS TO FAIR
TRIAL AND DUE PROCESS OF LAW, AND TO GRAND JURY INDICTMENT AND FAIR NOTICE OF
THE CHARGES AGAINST HIM
In this wholly circumstantial case, the Court in effect told the
jury, over objection, that they could discount innocent inferences from the
circumstances just as they would discount the innocent explanations of a
presumably guilty bully who had committed an assault (9135-36, 9195, 9198).
Circumstantial evidence was equated with community held presumptions of bad
character and other crimes, what "every other kid in the neighborhood
knew, ... it was him being a bully ... circumstantial evidence is quite
sufficient." (Ibid). The court emphasized the conclusiveness of this
"circumstantial evidence" by giving yet another example where the
inference from a fact was indisputable, i.e. the inference of the presence of
other people on an island from the fact of a footprint (9102-03).
The Court further prejudiced the jury's assessment of the evidence
at trial by telling them that "piles of stuff" not in evidence had
been found in appellant's apartment, that *78 the prosecution wanted all this
in at the trial, and that appellant's counsel had wrongly argued that only one
magazine article of relevance was found. The Court also emphasized wrongdoing
by other defense counsel, but, notwithstanding a promise to admonish the
prosecutor for shifting the burden of proof in his summation (8408, 8424), the
Court refrained from doing so. Finally, the Court negated an element of the
prosecution's burden of proof and amended the indictment by charging that a
defendant could be guilty of the conspiracy charged even though he had no
knowledge of a plan to bomb the World Trade Center.
A. Circumstantial Evidence: What Everyone Knows About a Bully.
The Court's charge on circumstantial evidence was prejudicially
erroneous, because it presumed guilt, instructed the jury to disregard
inferences consistent with innocence, called on the employment of
community-wide prejudices and knowledge of other crimes, and placed the
significance of circumstantial evidence above direct evidence. United States v.
Dove, 916 F.2d 41 (2d Cir., 1990); United States v. Clark, 475 F.2d 240 (2d
Cir., 1973). Obviously, the defendants on trial were the bullys in the court's
example. Like the bully, it was appellant's conduct which had to be judged
under the circumstantial evidence to ascertain his knowledge and intent. The
Court's example started with the conclusion that the bully had committed other
crimes, that the community presumed his guilt of these crimes, that anyone who
believed otherwise would be foolish and that the bully had actually committed
the offense on trial. Thus, the ultimate fact of guilt which the *79 jury was
required to determine was stated by the Court as a foregone conclusion.
In addition, the charge presumed that prior bad acts had been
committed, a notion wholly unsupported by the evidence, and it invited the jury
to infer from these acts that the defendants were guilty of the instant crimes,
a legally repugnant principle. See Fed.R.Evid. 404(b), 608, and 609(a); United
States v. Haves, 553 F.2d 824, 827 (2d Cir., 1977).
At a minimum, the charge undermined the concept that a person may
have committed an act but did not intend or know the consequences of his acts.
Such a concept was critical to the appellant since the government introduced a
plethora of innocuous acts together in an attempt to establish an inference of
participation in a nefarious plot. In essence, the Court told the jury that a
person intends the natural consequences of his acts, a charge that constitutes
the type of burden-shifting that violates due process. Sandstrom v. Montana,
442 U.S. 510, 520-25 (1979); United States v. Robinson, 545 F.2d 301, 305- 06
(2d Cir., 1976).
The charge also implied that circumstantial evidence was better
than direct evidence. The Supreme court has held that the weight of
circumstantial evidence is no different than the weight of direct evidence.
Holland v. United States, 348 U.S. 121, 139-140 (1954). The usual instruction is
to tell the jury that the "law makes no distinction between direct and
circumstantial evidence." 1 L. Sand, et al., Modern Federal Jury
Instructions -- Criminal, Paragraph 5.01, Instruction S-2. The Court erred in
departing from this formulation.
*80 Moreover, the charge is wrong because it invaded the province
of the jury as fact finders. it is for the jury, not the Court, to determine
which evidence, direct or circumstantial, is most probative and for the
"jury ... to weigh the chances that the evidence correctly points to guilt
against the possibility of inaccuracy or ambiguous inference." Holland v.
United States, 348 U.S. at 140. it was not the Court's prerogative to de??are
one class of evidence more probative than another or to elevate the utility of
circumstantial evidence. "[T]he ultimate resolution of questions of fact
must be unmistakably left to the jury." United States v. Bloom, 237 F.2d
158, 163 (2d Cir., 1956). Here, however, the Court made it unmistakably clear
that the circumstantial evidence was more reliable than direct evidence and
quite sufficient to convict.
B. The Court's Charge That Defense Counsel's Arguments Were Wrong
and That There Were "Piles of Stuff" Found in Appellant's Apartment
But Not Introduced in Evidence.
The Court violated appellant's due process right to argue the
absence of evidence. It told the jury to disregard his counsel's argument that
only one magazine article was found during the government's search of his
apartment. The Court told the jury that a whole "pile of stuff"
offered into evidence by the government had been recovered. However, counsel
appropriately argued the lack of evidence. See Cleary, McCormick On Evidence ¤
272 (1984); United States v. Hoffman, 964 F.2d 21, 24 (D.C. Cir., 1992); Unite
States v. Thompson, 37 F.3d 450, 452-54 (9th Cir., 1994).
The Court's eagerness to ridicule the argument and to counter it
with reference to inadmissible materials gave the appearance of bias against
the appellant and infected his right *81 to a fair trial United States v.
Bejasa, 904 F.2d 137 (2d Cir., 1990); United States v. Nazzaro, 472 F.2d 302,
312 (2d Cir., 1973). Here, the court's conduct is particularly troublesome. The
Court violated its own ruling that the other materials ("piles of
stuff") were irrelevant. Appellate Court's have overlooked judicial
hostility that harms a defendant when it is provoked by intentional misconduct
by his attorney. See United States v. Mickens, 926 F.2d 1323 (2d Cir., 1991);
United States v. Roldan-Zapata, 916 F.2d 795 (2d Cir., 1990); United States v.
Pisani, 773 F.2d 397 (2d Cir., 1985); United States v. Robinson, 635 F.2d 981
(2d Cir., 1980). However, no such rationale for the Court's conduct exists in
the instant case.
Moreover, references to inadmissible evidence are condemned by the
Courts, United States v. Hoffman, supra, 964 F.2d at 24; Mann v. Dugger, 817
F.2d 1471 (11th Cir., 1987); United States v. Boyce, 797 F.2d 691 (8th Cir.
1985), as are references to the existence of other evidence not adduced at
trial. United States v. Armone, 363 F.2d 385 (2d Cir., 1966); United States, v.
Johnson, 371 F.2d 800, 807 (3rd Cir., 1967); Wilson v. United States, 352 F.2d
889, 892 (8th Cir., 1965). Here, the comment, in addition to undermining
counsel's legitimate attack on the absence of evidence, imparted to the jury
that the government had other evidence that it could have brought against the
appellant,. See Leon v. Kuhlman, 443 F.Supp. 50, 61 (S.D.N.Y. 1977) (Court's
comments on the evidence must be fair and impartial). The statement amounted to
an invitation to the jury to speculate about the evidence. *82 And, its
practical affect on the jury was devastating to appellant. The comment came
from the judge, and it clearly expressed his opinion that the evidence had
meaning in contradistinction to counsel's argument. See United States v.
Nazzaro, 472 F.2d 302, 303 (22 cir. 1973) (reversal required when "it
appears to the jury that the Court believes the accused is guilty.").
The Court later weakly corrected itself and told the jury that the
"piles of stuff" had "apparently" been excluded on
relevance grounds, but the harm was done, and the correction was an
insufficient cure. The Court's use of the word "apparently" to
describe its own ruling signaled the jury that even the Court did not credit
it, and that the inadmitted evidence had value. The Court did not tell the jury
to reevaluate counsel's argument. It did not apologize, rather it continued its
attack on other defense counsel and held the prosecutor above criticism.
C. The Court's Charge That Conspiracy to Bomb the World Trade
Center Does Not Reguire Specific Intent and Knowledge
The Court rejected appellant's request to charge the jury that the
government was required to prove that he had had specific knowledge and intent
to bomb the World Trade Center. Rather, the Court instructed the jury only that
the object of the conspiracy "is not restricted to a particular
building" (9144-45, 9120- 22). The jury charge thus eliminated an element
of the crime, and enabled the jury to convict appellant without knowledge and
intent, for participation in a conspiracy beyond that which was charged,
noticed, and alleged in the *83 government's proof. United States v.
Maldonad-Rivera, 922 F.2d 934, 960 (2d Cir., 1990); United States v.
Rosenblatt, 554 F.2d 36 (2d Cir., 1977).
Conspiracy is a specific intent crime, and knowledge of the
conspiracy must be proven. United States v. Cangiano, 491 F.2d 906 (2d Cir.,
1974). The crime rests on the act of agreeing, and it is therefore, axiomatic
that the kind of agreement into which appellant entered is critical to the
jury's determination of the conspiracy charge. United States v. Falcone, 311
U.S. 205, 210 (1940); Ianelli v. United States, 420 U.S. 770, 777 n. 10,
(1975). As stated by this Circuit:
Proof of the essential nature of the plan is required because
"the gist of the offense remains the agreement, and it is therefore
essential to determine what kind of agreement or understanding existed as to
each defendant."
United States v. Rosenblatt, supra, 554 F.2d at 39, citing United
States v. Borelli, 336 F.2d 376, 384 (2d Cir. 1964).
Obviously, an agreement to bomb an abandoned building would, by
the very nature of the building, constitute a radically different agreement
than one to bomb the World Trade Center. Yet, under the Court's charge, the
finding of either agreement sufficed to convict. The Court opined that a
defendant would be guilty even if he intended to bomb the United Nations
(8298-8301). Although this view of the agreement also deviates from that which
was charged, it at least suggests an agreement similar to the one charged
because it involves a large city landmark. However, the sweeping language used
in the Court's instruction excised out a critical component of the agreement as
charged. Even if it could be *84 argued that the conspiracy charged was broader
than just the World Trade Center, that agreement at least included the World
Trade Center, and to be guilty a defendant would have to have had knowledge and
intent regarding that specific building in addition to others. The Court
removed that element, and, without evidence, fashioned a charged agreement in
which each defendant gave the others carte blanche on targets.
Failure to charge an element of the crime is reversible error.
Francis v. Franklin, 471 U.S. 307, 313 (1985). An incomprehensible charge on
the elements, particularly on the elements of knowledge and intent in a
circumstantial evidence case, requires reversal, United States v. Clark, 475
F.2d 240 (2d Cir., 1973), as does negation of the element of specific knowledge
United States v. Golitschek, 808 F.2d 195 (2d Cir., 1986); United States v.
Fields, 466 F.2d 119 (2d Cir., 1972) (reversal required where Court negated
element of actual knowledge that goods were stolen); United States v. Gillilan,
288 F.2d 796 (2d Cir., 1961) (Hand, J.) (charge failing to elaborate on
statutory language and what type of participation was necessary to prove
defendant conspired was prejudicial error).
When ascertaining the scope of a conspiratorial agreement, Courts
look to the specific factual scheme alleged in the indictment. See United
States v. Gavira, 740 F.2d 174, 183 (2d Cir., 1984); United States v.
Provenzano, 615 F.2d 37 (2d Cir., 1980); United States v. Gleason, 616 F.2d 2
(2d Cir., 1979); United States v. Rosenblatt, supar; United States v.
Treadwell, 760 F.2d 327 (D.C. Cir. 1985). As stated in United *85 States v.
Treadwell, the conspiratorial agreement must be specific, and the government
"cannot simply charge an offense by using general language of the statute
... but must accompany the generic language 'with such a statement of facts and
circumstances as will inform the accused of the specific offense, coming under
the general description, with which he is charged.' " Treadwell, supra,
760 F.2d at 337; United States v. Goldberg, 587 F. Supp. 302, 310 (S.D.N.Y.,
1984), rev'd on other grounds 756 F.2d 949 (2d Cir., 1985); United States v.
Abrams, 539 F. Supp. 378 (S.D.N.Y., 1982); cf. United States v. Salzar, 485
F.2d 1272, 1277 (2d Cir., 1973). A statute-tracking indictment will also fail
to fulfill Fifth Amendment due process and notice requirements when, as here, a
defendant has been denied a bill of particulars on the specific nature and
scope of the agreement charged. [FN15] United States v. Bortnovsky, 820 F.2d
572 (2d Cir., 1987). United States v. Davidoff, 845 F.2d 1151 (2d Cir., 1988):
United States v. Salazar, 485 F.2d 1272, 1278, (2d Cir., 1973). F.R. Crim. P.
7(f).
FN15.
Appellant moved prior to trial for a bill of particulars seeking further
definition of the scope and objects of the conspiratorial agreement charged to
him, but the motion was denied. (See Appellant's Appendix).
Here, the Court denied appellant his request for particulars and
then relied exclusively on the objects section of the indictment when defining
the vague scope of the conspiratorial agreement to the jury. The Court thus
used a vague statute tracking description of conspiracy effectively *86
diluting the government's burdens on the elements of knowledge, intent, and
scope of the conspiratorial agreement, and ignoring other aspects of the
indictment and the government's openings and summation which further clarified
the charge. See United States v. Whitehorn, 710 F. Supp. 803, 817 (D.D.C.,
1989) (allegations of specific bombing targets significant to sufficiency of
indictment on conspiracy charge).
A review of the indictment beyond the objects provision demonstrates
a specific focus on the World Trade Center. The indictment is replete with
references to this particular building. The statutory crimes are qualified with
the allegations that the World Trade Center was the specific building involved
in the substantive offenses. Two of the overt acts set out in the indictment
name the World Trade Center as the target for the bombing. See United States v.
Kahn, 381 F.2d 824 (7th Cir., 1967) (referring to overt acts and substantive
charges to clarify conspiracy count); United States v. Kilpatrick, 821 F.2d
1456 (10th Cir., 1987) (reading indictment as a whole to ascertain sufficiency
of conspiracy charge). Moreover, the government's opening and summation and the
focus of their presentation at trial bound them to a charge of conspiracy to
bomb the World Trade Center. United States v. McKeon, 738 F.2d 26, 30 (2d Cir.,
1984). In opening, the prosecution defined the charge as follows:
the basic idea of this case is very simple: these four defendants
... planned and carried out the terrorist bombing of the World Trade Center
complex on February 26 ... All the charges that are contained in the indictment
either arise from or relate to that conspiracy: the conspiracy entered into by
those four defendants and others to bomb buildings here on *87 American soil,
and specifically carrying out the bombing of the World Trade Center.
(19). In summation, they reiterated, "the defendants launched
a devastating terrorist attack on the World Trade Center ... these defendants
before you were the ones who carried out and planned the World Trade Center
bombing." (8302).
The Court's charge thus lessened the burden of proof by
eliminating specific knowledge and intent and allowing the jury to convict for
a conspiracy different than the one actually charged, See United States v.
Maldonado-Rivera, supra, 922 F.2 at 960, and it effectively amended the
indictment. Stirone v. United States, 361 U.S. 212 (1960). Constructive
amendment occurs when:
the terms of the indictment are in effect altered by the
presentation of evidence and jury instructions which so modify essential
elements of the offense charged that there is a substantial likelihood that the
defendant may have been convicted of an offense other than that charged in the
indictment.
United States v. Mollica, 849 F.2d 723, 729 (2d Cir., 1988),
(citing United States v. Hathaway, 798 F.2d 902, 910 (6th Cir., 1986). Here,
the "essential nature" of the conspiratorial agreement to bomb the
World Trade Center was broadened to an agreement to bomb any buildings,
consequently, the constructive amendment clearly raised the possibility that
appellant was convicted of an offense not passed upon by the grand jury, an
occurrence that warrants reversal of the conviction. Stirone, 361 U.S. at 219
(constructive amendment is "fatal error"); see also United States v.
Weiss, 752 F.2d 777, 787 (2d Cir., 1985).
Moreover, the scope of the conspiratorial agreement was critical
to the application of Pinkerton liability for the *88 other seven substantive
counts in the indictment. A defendant is not guilty of the substantive offenses
committed by a co-conspirator if the acts underlying those offenses did not
"fall within the scope of the unlawful project" undertaken by the
defendant. Pinkerton v. United States, 328 U.S. 640, 647-48 (1946). Here,
without a determination that appellant had knowledge of, and agreed to
participate in, a plot to bomb the World Trade Center, Pinkerton could not be
fairly applied. The Court's charge allowed the jury to find appellant guilty of
the seven substantive offenses of bombing the World Trade Center, without a
finding of specific knowledge or intent, and then to use that finding to
"spillover" guilt in reverse to the one vague conspiracy charge.
United States v. Glenn, 828 F.2d 855 (1st Cir., 1987); United States v. Salmon,
944 F.2d 1106, 1117 (3rd Cir., 1991).
POINT IV
THE TRIAL COURT'S EX PARTE AGREEMENT WITH THE PROSECUTION TO
CONCEAL THE EVIDENCE, ITS MISREPRESENTATION TO DEFENSE COUNSEL, AND THE
PROSECUTOR'S MISREPRESENTATION TO THE JURY THAT A WITNESS WAS NOT A PAID
GOVERNMENT INFORMANT ON THIS CASE, THE COURT'S CONCEALMENT OF OTHER RELEVANT
FACTS ABOUT PROSECUTION WITNESSES, AND ITS PRECLUSIONS OF CROSS-EXAMINATION
CONSTITUTED REVERSIBLE ERROR IN VIOLATION OF APPELLANT'S FIFTH AND SIXTH
AMENDMENT RIGHTS TO EFFECTIVE COUNSEL, DUE PROCESS, AND CROSS-EXAMINATION, AND
HIS DUE PROCESS RIGHT TO AN IMPARTIAL JUDGE
The trial Judge held an ex parte conference in chambers and agreed
with the prosecutors to withhold from the defense the fact that a prosecution
witness had been paid by the prosecution to inform on appellant's alleged
co-conspirator, Sheik Abdel Rahman. The Court then affirmatively *89
misrepresented to the defense that the witness' cooperation "had nothing
to do with this case" (5863), even though it wrote in another context,
"The criminal transaction tried in the case at bar forms a part of the
charges in Rahman ....." United States v. Salameh, 856 F.Supp. 781, 784
(1994). In another such ex parte conference, the Court agreed with the
prosecutor to conceal from the defense prior perjury about a prior conviction
by the witness, Carl Butler, who, the prosecution claimed, saw appellant
"barking orders" at the bomb factory. [FN16] The Court further
precluded the defense from eliciting facts about FBI coercion of the witness
Ashraf Moneeb, who the prosecution claimed identified appellant as the man who
helped Salameh and Yousef find the apartment used as the bomb factory. The
Court then allowed the prosecutor to redirect the witness on the absence of
such pressure.
FN16.
The transcripts of these ex parte proceedings were sealed during the trial.
They were unsealed in May, 1995, for the purposes of this appeal.
The ex parte agreements by the Court and prosecution, and the
Court's affirmative act of misrepresentation furthering prosecution efforts to
deprive the defense of relevant evidence of the bias and motives of witnesses,
exemplified the appearance of partiality of the trial Judge repeated in other
behavior and rulings throughout the case (see Points, infra). Offut v. United
States, 348 U.S. 11 (1954); United States v. Martinez, 667 F.2d 886 (10th Cir.,
1981); Webb v. Texas, 409 U.S. 95 (1972). Concealment of the exculpatory
evidence of Moharam's bias and preclusion of cross-examination into the *90
other matters concealed and proscribed constituted violations of appellant's
right to confrontation under the Sixth Amendment (Delaware v. Van Arsdall, 475
U.S. (1986)), and his right to the disclosure of exculpatory evidence under Brady
v, Maryland, 373 U.S. 83 (1963); Reutter v. Solem, 888 F.2d 578 (8th Cir.,
1989).
In addition, the ex parte discussions with the government violated
appellant's right to a fair trial and due process of law. As stated by the
First Circuit in Haller v. Robbins, 409 F.2d 857, 859 (1st Cir., 3969),
"not only is it a gross breach of the appearance of justice when the
defendant's principal adversary is given private access to the ear of the
court, it is a dangerous procedure." Here, the Court excluded the exculpatory
Moharam and Butler evidence without any say from the defense. This drastic
measure inherently offends due process, In Re Grand Jury Subpoena Directing
Taylor to Appear and Testify, 567 F.2d 1183, 1188 (2d Cir., 1977), and should
only be utilized if demanded by a compelling interest. Id; Roviaro v. United
States 353 U S. 53 (1957). The government's general allegation of reprisal as
to Moharam does not reach this level, particularly because only Moharam's
"concerns" were mentioned and he was already in protective custody.
Compare with United States v. Arroyo-Angulo, 580 F.2d 1137 (2d Cir.,
1978)(actual death threats), United States v. Bell, 464 F.2d 667 (2d Cir.,
1972) (confidentiality of airplane hijacking profile). Furthermore, there was
no basis for the Court to speculate about the usefulness of the Butler
impeachment evidence without obtaining input from the defense. *91United States
v. Mote, 582 F.2d 654, 662 (2d Cir., 1978). even when legitimate grounds for
restriction exists, this Court has condoned measures less severe than total
defense exclusion, like the presence in chambers of defense counsel to maintain
the adversarial balance. Bell, supra. On this record, the total removal of the
defense cannot be justified. Rushen v. Spain, 464 U.S. 114 (1983).
The Supreme Court in Delaware v. Van Arsdall, supra, held that a
defendant has a constitutionally protected right under the confrontation clause
to cross-examine witnesses about their bias and their motivation to lie. There,
the Court stated:
[A] Criminal defendant states a violation of the Confrontation
Clause by showing that he was prohibited from engaging in otherwise appropriate
cross-examination designed to show a prototypical form of bias on the part of
the witness, and thereby "to exposeto the jury the facts from which the
jurors... could appropriately draw inferences relating to the reliability of
the witness."
Delaware v. Van Arsdall, supra, at 680, quoting Davis v. Alaska,
415 U.S. 308, 318, (1974); see also United States v. Abel, 469 U.S. 45, 50, 51
(1984) (holding that bias evidence was admissible and relevant under Fed. R.
Evid. 401). Clearly, the lines of attack counsel was prevented from developing
on cross examination directly impacted on the witness' credibility and the
Court's orders unequivocally conflicted with the confrontation clause.
Without question, the fact that Moharam received money and may
have received favorable treatment from the government on his counterfeiting
charge in exchange for providing evidence against Sheik Rahman and his
followers, including appellant, was relevant to his credibility. Even a *92
hope of leniency on criminal charges bears on a witness' veracity. United
States v. Towne, 870 F.2d 880, 886 (2d Cir., 1989). Here, substantial
consideration may have been extended to the witness, or he may have harbored
hopes of such, however, the Court stifled exploration of these potential facts.
Moreover, Moharam gave personal opinion and private conversation type testimony
easy to fabricate, and his motives to do so were significant and salient. Thus,
it was also clearly appropriate to elicit his desire to stay in the good graces
of the government for financial gain. A witness' financial stake in the outcome
of a case is highly probative of his motivation to lie. United States v. Reed,
437 F.2d 57 (2d Cir., 1971). Instead, the prosecutor capitalized on the
concealment of Moharam's penal and financial interest in this case by
misrepresenting to the jury that he had had none.
What is Mr. Abdellah's response? Truth and deception. Maharam's
testimony must have been paid for. That's just not true. The witness told you
he was not paid for testifying. He had lost his business because he was a
witness in this case. Does anyone think Mr. Maharam did it for the money? You
think he wanted to be here?
(9056)
Furthermore, the government's rationale for concealing Moharam's
status was merely Moharam's "concern," his preference that it not be
revealed (5857). No threats or other basis for concealment were even offered.
Moharam's "concern" did not raise a sufficient basis to restrict
cross-examination, particularly since Moharam chose the role of paid informant
to begin with, and he was in protective custody (AUSA letter dated January 2,
1994, See Appellants' Appendix). The government cannot create the circumstances
giving rise to a motive to *93 falsify testimony and then offer the testimony
without the motive. An informant's status could always be concealed that way,
on grounds of concern for safety. Any such fears can, as they were here, be
dealt with by witness protection. See Davis v. Alaska, 415 U.S. 308 (1974);
Roviaro v. United States, 353 U.S. 53 (1957); Alford v. United States, 282 U.S.
687 (1931) (Confrontation rights outweigh concerns for protecting anonymity of
juvenile offenders).
The Court also concealed 40 Pamrapo tenant Butler's perjury about
his criminal conviction. The witness served a ten-year prison sentence in
Attica and lied about this fact on court documents and in his Air Force
enlistment application. In addition, he had been AWOL and was unfavorably
discharged from the service. All of these facts were kept from the defense and
hence the jury. His false statements about his conviction impacted directly on
his untruthfulness and were therefore, highly probative. Prohibiting
cross-examination into these matters constituted egregious error. Fed.R.Evid.
608; United States v. Jones, 900 F.2d 512, 520-21 (2d Cir., 1991); United
States v. Lanza, 790 F.2d 1015, 1020 (2d Cir. 1986); Lewis v. Baker, 526 F.2d
470 (2d Cir., 1975).
Ashraf Moneeb's credibility was thrown into question by pressure
placed upon him by the FBI. He was handcuffed and subjected to a gunpoint
interrogation when the FBI recruited his services as a witness against
appellant. He was threatened with deportation, his grant of citizenship was
held in abeyance, and his green card was retained by the FBI pending his trial
testimony. First the Court precluded cross-examination about these and other
circumstances of coercion, *94 then it actually allowed the government on
redirect to elicit testimony that he was "not pressured to make things
up." Pressure placed on a witness by government interrogators is
undoubtedly relevant to credibility. United States v. Shyllon, 10 F.3d 1 (D.C.
Cir., 1993). Here, Moneeb was roommates with Salameh and Yousef, and was placed
on the government's extensive list of unindicted co-conspirators. Questioning
about the FBI's interrogation may very well have elicited that he testified
falsely against the appellant to stave off charges that he was a co-conspirator
and to avoid other specific coercive measures used against him. Moreover, fear
of deportation is a very obvious and understandable motive to lie. There was no
basis whatsoever to limit cross-examination on these matters.
The confrontation clause violations were not harmless beyond a
reasonable doubt. Delaware v. Van Arsdall, supra. The case against appellant,
which rested on his supposed participation in a conspiracy, consisted of
cumulative evidence of mere presence and association sprinkled with innocuous
facts and inadmissible evidence. The testimonies of the three witnesses here
were emphasized by the prosecution in summation as central to their case
(8365-70, 8415, 8475-77), and foreclosure of cross-examination, particularly on
motive to lie, is not harmless error and never collateral. United States v.
Lawson, 683 F.2d 688 (2d Cir., 1982); United States v. James, 609 F.2d 36 (2d
Cir.,1979).
*95 POINT V
THE PROSECUTOR'S IN-COURT PROMPTING OF A WITNESS WITH A SUGGESTIVE
PHOTOSPREAD TO IDENTIFY APPELLANT INSTEAD OF A JUROR DENIED APPELLANT A FAIR
TRIAL AND DUE PROCESS OF LAW
At trial, Willie Moosh, a gas station attendant, identified a
juror as the driver of a car who bought gas for a yellow Ryder van in the early
morning hours before the explosion. The juror, not appellant, was identified
despite the facts that appellant was sitting at the defense table and that the
witness' attention was drawn to him by an objection posed by counsel standing
beside him. The Court nonetheless, permitted the prosecutor to prompt the
witness to change his identification by showing him a photospread containing
appellant's picture initialed by Moosh. [FN17] Then after an overnight recess,
on redirect examination, the prosecution was permitted to elicit the
identification of appellant.
FN17.
Appellant has separately applied to this Court for a remand and a new trial on
the grounds that the pretrial photographic identification procedures must have
been unduly suggestive and that the trial attorney's failure to request
suppression and a hearing was ineffective assistance of counsel
In essence, the prosecution was permitted to inappropriately use a
recollection refreshment technique, without foundation in an absence of
recollection, and thereby to unduly suggest an in-court identification that was
unreliable from the outset. It was erroneous to allow the government to prompt
the witness after he has made an unequivocal identification of a juror who
looked nothing like appellant (T.5229-30), and there was no indication that he
needed his memory refreshed. it was grossly unfair to alter *96 identification
testimony with a suggestive identification procedure. And, the in-court identification
should have been excluded because it was unreliable and not based on an
adequate independent source. Unquestionably, the identification deprived
appellant of a fair trial in violation of due process of law.
It was improper to prompt him with photographs when there was no
indication that his memory needed to be refreshed. United States v.
Felix-Jerez, 667 F.2d 1297, 1300 (9th Cir., 1982). The error was compounded by
the use of a photospread which suggested the identification of appellant. It
allowed the government to manipulate the device of refreshing recollection as a
subterfuge to improperly suggest identification testimony that was expected of
the witness. Such a practice is condemned by the Courts. United States v.
Ricardi, 174 F.2d 883, 889 (3rd Cir., 1949); see also United States v. Zackson,
12 F.3d 1178, 1184 (2d Cir., 1993) ("impeachment by prior inconsistent
statement may not be permitted where employed as a mere subterfuge to get
before the jury evidence not otherwise admissible," citing United States
v. Morlong, 531 F.2d 183, 190 (4th Cir., 1975)). The harm was severe here
because, unlike other testimonial evidence that is refreshed, identification
evidence implicates concerns for reliability that reach constitutional
dimension. Here, Moosh's initials were on appellant's picture contained in the
photospread. An identification based on a single photograph or a picture that
highlights the defendant is unduly suggestive. Simmons v. United States, 390
U.S. 377 (1968); United States v. Archibald, 734 F.2d 938, 940 (2d Cir., 1984).
Moreover, *97 appellant was still situated in the courtroom when the photograph
of him was shown. A comparison between the pictures and the persons in the
courtroom would obviously lead to a positive identification regardless of the
lack of suggestiveness of the photographs. See Moore v. Illinois, 434 U.S. 220,
229 (1977).
At a minimum, a Wade hearing should have been held to ascertain
the reliability of the in-court identification of appellant, because it
followed not only the witness' failure to identify him, but his affirmative
choice of someone else. United States v. Maldonado-Rivera, 922 F.2d 934, 975-76
(2d Cir., 1990) compels such a minimum safeguard. See also United States v.
Concepcion, 983 F.2d 369, 378-79 (2d Cir., 1992) in Maldonado-Rivera a witness
was unable to identify the defendant at a mid-trial Wade hearing until he was
shown a photospread used at a law enforcement conducted pretrial identification
procedure. This Court held that because the witness had failed to make a
contemporaneous in-court identification at the Wade hearing, an in-court
identification at trial in front of the jury could not proceed without
"further consideration" of his actual observations of the perpetrator
prior to the involvement of law enforcement. The Court adopted this reasoning
despite its conclusions that the witness had identified the defendant during
the law enforcement conducted pretrial procedures that were found to be
unsuggestive, and that the witness' recollection had been refreshed at the
mid-trial Wade hearing with an unsuggestive photospread. Addressing its concern
that the witness' current inability to identify the defendant impacted on the
reliability of the in-court identification *98 before the jury, the Court pointed
out that:
"[R]ecollection should (so far as can be expected) correspond
to and represent the impression originally gained by observation (emphasis in
original)."
Maldonado, 922 F.2d at 976, citing 3 Wigmore on Evidence ¤ 725
(Chadbourn rev. ed. 1970). It continued:
Where, as here, the means of refreshing the recollection was the
display of an unsuggestive array of photographs, our touchstone is the
witness's actual observations prior to any law enforcement involvement.
Id. The Court then satisfied itself that the witness had had an
adequate opportunity to initially observe the defendant before it approved the
in-court identification. The Neil v. Biggers criteria were applied to assess
the reliability of the in-court procedure. [FN18]
FN18.
The factors in Neil v. Biggers, 409 U.S. 188, 199-200 (1972) are:
1.
opportunity of the witness to view the defendant prior to the identification
procedures;
2. the
accuracy of the prior description;
3. the
level of certainty of the witness at the time of confrontation; and
4. the
delay between the initial viewing and the identification procedure.
Obviously, the facts of the instant case present a more
troublesome scenario than the one faced in Maldonado-Rivera. First, Moosh did
not demonstrate an inability to make an identification. He unequivocally
identified a juror. This raises the concerns about reliability above those
contemplated in Maldonado-Rivera because appellant was actually sitting at the
defense table and the witness' attention was alerted to him as a result of an
objection. In Maldonado-Rivera the defendant was situated in the audience
during the Wade hearing. Second, it was defense counsel who prompted the
identification in Maldonado-Rivera by showing the photospread to the witness on
*99 cross-examination at the hearing. As noted in Maldonado-Rivera:
[T]he prosecutor may not properly engage in procedures that are
designed to manufacture an identification where there was in fact no
recognition or to turn a tentative identification into one that is certain.
Id. at 975-976; see also Solomon v. Smith, 645 F.2d 1179, 118586
(2d Cir., 1981). Here, the identification was forced out of the witness through
an improper technique utilized by the government. And, lastly, unlike
Maldonado-Rivera, there was no finding that the law enforcement conducted
pretrial identification procedures were proper. Trial counsel did not move for
a hearing on those procedures, and appellant has contended in a separate motion
for remand filed in this Court on grounds of ineffective assistance of counsel
that the pretrial procedures must have been suggestive, and that a motion
should have been made to suppress and a hearing held to test the reliability of
the in-court identification.
In any event, on the trial record it is apparent that an
application of the Biggers criteria to the instant facts compel suppression of
the in-court identification. Moosh's actual observations at the gas station do
not supply a strong independent basis to save the in-court identification.
Moosh's opportunity to view the suspect was not extended and was uneventful. At
trial, Moosh described viewing a driver of a car who paid for gas at 3 or 4
o'clock in the morning. As a gas station attendant there was nothing unusual
about this occurrence. Moreover, when explaining the misidentification of two
jurors, the witness stated that many Arab's with beards came to the gas station
(5043-44). Certainly, the witness' degree of inattentiveness is a factor
cutting against the *100 reliability of an in-court identification ten months
later.
Additionally, the accuracy of Moosh's description given to the FBI
prior to trial does not match that of appellant and is inconsistent with his
trial testimony. When he was interviewed he told the FBI that the driver of the
car had dark hair (4057, 4062). However, at trial he described the driver as
having orange hair. Moreover, at trial he was specific and stated that the
driver was white and had freckles and a beard (5043-44). No such detail was
originally provided to the FBI.
Moreover, it appears his identification was unfairly influenced by
media coverage. Willie Moosh had already seen television and newspaper reports
with pictures of the suspects prior to viewing the photographic arrays (4019,
4989- 4990). Photographs of the appellant were undoubtedly part of those
reports. in addition, one must factor in the newsworthiness of Moosh's account.
He was turned into a public figure overnight and was certainly pressured to
stick to the story that brought him into the spotlight.
Furthermore, Moosh was a witness who was easily swayed by the FBI.
He was a legal resident seeking citizenship in the United States and could not
speak English and used his wife as an interpreter when he was initially
questioned by the FBI (4040). It is evident that someone in his position would
want to cooperate with the government's agenda. In fact, his testimony suggests
strong partisanship with the government. He described his role as a prosecution
witness "defending his country" (5010). In addition, the government
paid him $45,000 to cooperate (4049-53). Although the prosecution contended
*101 that the money was to offset his departure from the gas station, a move
for safety purposes, he still remained at the same residence at the time of
trial. Also, $45,000 represents a substantial incentive to provide favorable
information, especially when considering the modest compensation given to a gas
attendant and the fact that he could continue to work elsewhere to supplement
the government's award.
Clearly, the failure to exclude the in-court identification cannot
be seen as harmless. See Concepcion, at 379-80. The case against appellant was
wholly circumstantial. Appellant was linked to a conspiracy by his mere
association with co-defendants and through innocuous and inadmissible evidence
that failed to sufficiently prove his participation. Identifying appellant at
the gas station as the one who paid for the gas of the yellow Ryder van on the
morning of the explosion had a devastating impact on the jury. Without
question, the introduction of Moosh's identification was not harmless.
Moreover, although trial counsel did challenge the in-court
prompting of the in-court identification he did not press for a mid-trial Wade
hearing. The inappropriate in-court prompting of the identification itself
warrants reversal. In any event, trial counsel's failure to request a Wade
hearing constituted ineffective assistance of counsel. The identification of
the juror rendered suspect any pre-trial procedures used to obtain an
identification of appellant, and it was inexcusable for the error to go
unaddressed, especially in light of this Court's recent treatment of the issue
in United States v. Maldonado-Rivera, supra, and Untied States v. *102
Concepcion, supra, Strickland v. Washington, 466 U.S. 668 (1984).
POINT VI
THE PROSECUTOR'S COERCIVE QUESTIONING OF HIS WITNESS TO OBTAIN
DESIRED ANSWERS, THE COURT'S INTERRUPTION OF CROSS-EXAMINATION ON THE SUBJECT
OF THE WITNESS' RESULTANT LIE, AND THE COURT'S INSTRUCTIONS AMELIORATING THE
INCIDENT AND SUPPLYING NEUTRALIZING TESTIMONY, VIOLATED THE RULES OF EVIDENCE
AND DEPRIVED APPELLANT OF THE CONSTITUTIONAL RIGHTS TO CROSS-EXAMINATION, FAIR
TRIAL, AND DUE PROCESS OF LAW
A prosecution witness, Blessing Igiri, lied on cross-examination,
testifying that he had not talked to the prosecutor during a break in direct
examination just prior to a self-contradictory change in testimony. The Court
then interrupted cross-examination on this subject and gave instructions in
open court that ignored the lie, that "there is nothing wrong" and
"it is required" to have such talks, and supplying testimony that the
prosecutor told the witness "not the exact words ... basically what he was
going to ask you, yes?" (3904-06). The witness had been effectively
coached, at least during his initial direct examination when, despite his
repeated protestations to the contrary, the prosecutor was permitted, over
objection, to repeatedly ask for the answers the witness later gave after the
break and the off-the-record discussion with the prosecutor.
The Court's conduct violated appellant's rights to confront and
cross-examine the witnesses against him and to a fair trial. Delaware v. Van
Arsdall, 475 U.S. 673, 680 (1986); Davis v. Alaska, 415 U.S. 308 (1974); United
States v. Abel, 469 U.S. 45, 50 (1984); Henry v. Speckard, 22 F.3d 1209 (2d
Cir. 1994). In the instant case, the Court did more than *103 completely bar a
challenge to the witness Igiri's credibility without a legitimate reason; it
actually rehabilitated him and negated any suspicions that the jury may have
had about the possible government induced perjury and the fact that the witness
lied.
Government influence, suggestion, or subornation of perjury is a
fertile area for challenging a witness' credibility. See United States v.
Shyllon, 10 F.3d 1 (D.C. Cir., 1993); United States v. Hayward, 6 F.3d 1241,
1254-55 (7th Cir., 1993); McConnell v. United State, 393 F.2d 404, 406-07 (5th
Cir., 1968). Moreover, the witness' lie was significant to his credibility for
two reasons. First, it was an independent basis to impugn Igiri's veracity
because it proved that he was an untruthful witness. Furthermore, it showed
that he was hiding something about his conversations with the prosecutor and
therefore it impled that he may have perjured himself due to improper
government influence.
The actual likelihood of government influence was underscored by
the direct examination. The prosecutor led Igiri in a blatantly coercive manner
in an effort to wrench from him the substantive testimony the prosecutor
wanted. The defense's objection to this type of direct examination should have been
sustained in the first instance. Leading on direct-examination is generally not
allowed, Fed.R.Evid. 611(c), and it cannot be employed to create a false
memory, United States v. McGovern, 499 F.2d 1140, 1142 (1st Cir., 1974), United
States v. Durham, 319 F.2d 590, 592 (4th Cir., 1963), especially when the
witness is not hostile. Ellis v. City of Chicago, 667 F.2d 606, 612 (7th Cir.,
1981). Here, the *104 government's witness unequivocally denied seeing Salameh
leave the facility in a yellow Ryder van followed by a sedan, despite repeated
coercive questions designed to change his mind. Without a doubt the viability
of the defense's challenge to testimony suddenly changed thereafter during the
break was clear to the Court, and the interference with the cross-examination
was unjustified.
In addition, the Court's conduct deprived appellant of a fair
trial in violation of due process of law. In particular, the Court's
instructions had the effect of misleading the jury into thinking that Igiri's
mid-testimony discussions with the prosecutor and his lie about the discussions
were meaningless. [FN19] And, the Court's sua sponte interruption of the
cross-examination to protect and rehabilitate the witness and to supply the
witness' testimony in the Judge's own words, amounted to a gross display of the
appearance of judicial bias against the defense. United States v. Mazzilli, 848
F.2d 384 (2d Cir., 1988). The Supreme Court in Ouercia v. United States, 289
U.S. 466, 470 (1933) earned about the harm that flows from a Judge's
unwarranted commentary on the evidence and ordered that "he may not either
distort it or add to it."
FN19.
The Court's conduct also had the effect of keeping impeachment evidence from
the defense. See Brady v. Maryland, 373 U.S. 83 (1963); United States v.
Giglio, 405 U.S. 150 (1972); United Stated v. Bagley, 473 U.S. 667 (1985).
In the instant case, the Court's comment that lawyer's are
"supposed" to speak to witnesses and that there was "nothing
wrong" with it was a gross misrepresentation of the circumstances and it
unfairly minimized the possibility *105 that Igiri was perjuring himself at
prosecution insistence. while lawyers do prepare witnesses, they do not
routinely do so in the middle of their testimony, and they certainly do not do
so in order to change what a witness has previously insisted in open Court was
the truth. Here, contrary to the Court's characterization, the discussion with
Igiri was highly irregular. The conversation was mid-testimony not
pre-testimony, and given the prior direct testimony and the sudden change after
the break, the potentiality for the inducement of perjury was substantial. The
court's illustration of the facts was thus inaccurate, and the commentary
unfairly neutralized significant evidence of falsified testimony. Id; see also
United States v. DeSisto, 289 F.2d 833, 834 (2d Cir., 1961) (court cannot usurp
role of jury or representative of parties).
Harmful error analysis concludes that reversal is required.
Delaware v. Van Arsdall, supra, 475 U.S. at 684. In the instant case, the
Court's interposition completely blocked a challenge to Igiri's credibility,
demonstrated its belief in the rectitude of the witness and the prosecution's
handling of the witness, and diffused damage to the prosecution's integrity in
general, which was questioned in the same way when the witness Moosh changed
his testimony after an overnight break (See Point V, supra). Moreover, Igiri
was not an inconsequential witness. Although Igiri continued to deny seeing a
sedan accompanying the Ryder Van, his altered testimony coupled with that of a
second witness who said he did see a sedan, implied that appellant, who drove a
sedan, was present during a delivery of hydrogen gas canisters the day before
the explosion. Had Igiri been permitted to stick to the *106 initial testimony
he so adamantly maintained before the break, there would have been a direct
contradiction between the two witnesses. Thus, this evidence, which was argued
as relevant to the outcome of appellant's case, amid the other insufficient
circumstantial evidence against him and the failure of the government to
establish that he was ever present with the co-appellant's during the times and
at places deemed critical by the prosecution (See supra Point I), would have
been neutralized. Furthermore the evidence was directly damaging to
co-defendant Salameh, and as such in a conspiracy prosecution, where the
evidence of associa??on was str??g, the prejudicial spillover was obvious.
The Court's behavior overextending itself to protect the witness
suggested to the jury that the government's cause needed to be actively
defended when it was compromised by even government witnesses. This act
undoubtedly accentuated the Court's appearance of partisanship with the
Government and disturbed the "appearance of impartiality and judicial
detachment." United States v. Nazzaro, 472 F.2d 302, 313 (2d Cir., 1973).
Additionally, the Court's appearance of bias against the defense
was not an isolated event. United States v. Rosa, 11 F.3d, 315, 343 (2d Cir.,
1933). Rather, the Court's remarks, conduct, and rulings had the effect of
consistently undermining the defense and appearing to show favoritism toward
the prosecution (See the other Points herein). The undermining of the Igiri
cross-examination coupled with the other remarks and rulings establishes the
appearance of pervasive bias against the defense and a violation of their right
to an *107 impartial Court. United States v. Edwardo-Franco, 885 F.2d 1002,
1010 (2d Cir., 1989).
POINT VII
ANGER, FEAR. AND HATRED AGAINST APPELLANT WERE INSTILLED IN THE
JURY BY DAYS OF VICTIMS TESTIMONY GRUESOME AUTOPSY PHOTOS, MEDICAL EXAMINER
TESTIMONY, AND ORAL RECITATIONS OF HATE LITERATURE IRRELEVANT TO GUILT AND
DENYING APPELLANT A FAIR TRIAL AND DUE PROCESS OF LAW.
Five days of testimony from wore than a score of witnesses
recounting horrifying and painful experiences about dead and injured victims to
the point where jurors were overwrought with emotion and reduced to tears;
gruesome photographs of dead injured victims; the Medical Examiner's
reiteration in graphic detail of the injuries while referring to the pictures,
and inflammatory hate literature about a violent holy war on Americans, Jews
and Christians all were admitted against appellant without relevance but with
blinding prejudicial impact. That death and injury had occurred as a result of
the explosion was stipulated to and undisputed. The hate literature was
unsigned, unauthored, unauthenticated, and there was no evidence of its
adoption by appellant. Nor did he even possess it.
Evidence that "arouse[s] the jury's passions to a point where
they would act irrationally in reaching their verdict," is so unfairly
prejudicial that it must be excluded. United States v. Robinson, 560 F.2d 507,
514 (2d Cir., 1977); F.R.Evid.403. The Advisory committee on the Federal Rules
of Evidence, defines unfair prejudice as "a tendency to suggest decision
on an improper basis, commonly, though not necessarily an emotional one."
Notes of Advisory Committee on Proposed *108 Rules, Rule 403.
Clearly, as in this case, a jury's ability to make a rational or
proper decision can be destroyed by the needless presentation of gruesome
evidence, see United States v. Leonard, 524 F.2d 1076, 1091 (2d Cir., 1975)
("bloody shirt"); United States v. Konovsky, 202 F.2d 721 (7th Cir.,
1953)(reversal required due to admission of shocking photographs of riot and
destruction on charge of failure to disperse a mob) or by evidence that
suggests a defendant's hatred toward religious groups and which offends the
jury's sensibilities. See United States v. Lane, 883 F.2d 1484, 1499 (10th
Cir., 1989). Moreover, the probative value of even relevant evidence is
diminished under a Rule 403 analysis if that evidence is cumulative and the
party stipulates to the proof, or if the fact which the party seeks to
establish is not called into question by the opponent. United States v Edwards,
631 F.2d 1049, 1051 (2d Cir., 1980); see United States v. Thai, 29 F.3d 785,
813 (2d Cir., 1994). Of course, evidence that is irrelevant under Federal Rule
of Evidence 401 has no probative value and therefore does not even carry weight
in a 403 balancing test. United States v. Harvey, 991 F.2d 981, 996 (2d Cir.,
1993).
In the instant case, the Court's rulings admitting the evidence
cannot be supported under any standard of review. The prosecution began its
case with five days of testimony from over 20 witnesses about their horrifying
experiences caused by the explosion. The nature of this evidence was
particularly prejudicial in light of the microcosmic portrayal it gave of the
different lives that were affected by the explosion. The *109 presentation
consisted of repeated stories of pain and suffering blatantly proffered for the
sole purpose of generating anger and hatred toward the defendants. This
testimony, which actually drove jurors to tears, epitomizes the emotion
provoking evidence that directly undermines the jury's ability to reach a
rational verdict. See United States v. Robinson, supra.
This evidence was not even relevant to an issue in dispute. It was
never contested that an explosion occurred and that people were killed and
injured. Nevertheless, the Court permitted an accumulation of stories that
merely established death and injury by explosion over and over again. The
prejudicial and cumulative Stature of this evidence carried such intense
emotional fervor that the probative value, if any, was smothered by the
prejudicial effect.
If that was not enough, the prosecution was permitted to horrify
the jury with ten gruesome photographs of dead and injured victims in a case
where neither the cause of death nor the intent to cause death were at issue.
The jury was shown graphic photographs of dismembered bodies, a dead pregnant
woman, a head with a hole in it, and dead bodies laid out. This photographic
evidence was further embellished by the Medical Examiner who explained, in
graphic detail, the cause of death and was permitted to enhance his
inflammatory testimony by referring to the photographs. The imagery raised by
this photographic and testimonial cause of death evidence cannot be justified
under a Rule 403 analysis. It's prejudicial effect was overwhelming. Moreover,
in light of the stipulation, the probative value was nil, especially coming in
the wake of the *110 testimony about the heart wrenching experiences from the
20 witnesses.
The jury's emotional anger and hatred against appellant were
further fanned by the highly inflammatory hate literature recovered from
co-appellant Ajaj and admitted without limiting instruction. [FN20] The jury
was exposed to lengthy oral recitation of passages from the literature directed
at them as targets, saw a videotape about violent "Jihad" and heard
offensive racist statements describing hatred toward Americans, Jews and Christians.
The messages also depicted the authors of the literature and videotape as
fanatical Islamic terrorists, a label that was then imputed to appellant. The
evidence also constituted a pointed personal threat to the jurors who were
Americans, Christians and Jews. Unquestionably, it directly undermined their
ability to be fair and to render a rational verdict.
FN20.
Appellant also moved for a severance in light of the Court's ruling to admit
the Ajaj materials. The denial of severance is raised in a separate point. See
Point IX, infra.
The ruling to admit this evidence was particularly egregious
because the literature was unsigned and unauthored by the defendants and there
was no evidence that appellant adopted it. Indeed, there was no proof that possession
of literature supported the inference of motive to commit crime, and to permit
such an inference violated First Amendment freedom of speech and expression.
United States v. Harvey, supra, at 995 ("If the First Amendment means
anything, it means that the State has no business telling a man, sitting alone
in his own house, what books he may read or what films he may watch");
*111 United States v. Giese, 597 F.2d 1170 (9th Cir., 1979) (permitting jury to
hear title of political anti-Government book only because the book contained
fingerprints of conspirators and therefore established the fact of association,
but otherwise prohibiting use of literature to "prove violent
character" or "induce the jury to punish ... for reading and recommending
radical literature"); United states v. Jacobson, 112 S.Ct. 1535, 1541
(1992)( "evidence that merely indicates a generic inclination to act
within a broad range, not all of which is criminal, is of little probative
value in establishing predisposition"). For all these reasons it also
should have been excluded on relevance grounds under Rule 401. [FN21]
Furthermore, the material was obtained from Ajaj when he was attempting to
enter the United States six months before the explosion occurred. There was no
connection between appellant and Ajaj, let alone between appellant and the
materials Ajaj possessed. United States v. Falley, 489 F.2d 33 (2d Cir., 1973).
In fact, Ajaj was taken into custody upon his arrival into the United States by
INS and remained incarcerated until after the explosion.
FN21.
Even many of the various references to guns, poisons and explosives contained
in the materials had no relationship to the material allegedly used to damage
the World Trade Center.
The Court also committed reversible error by admitting other
testimony and documents, described in the Statement of Facts, supra, Section
VIII, which had no probative value but which substantially prejudiced the
appellant.
*112 POINT VIII
THE COURT'S REFUSAL TO CONDUCT THE REQUESTED PROBING VOIR DIR OF
THE JURY ON BIAS AGAINST MUSLIMS AND REACTION TO HATE LITERATURE, WHERE THE
CRIME CHARGED WAS VIOLENT, THE APPELLANT WAS A MEMBER OF A RACIAL, ETHNIC AND
RELIGIOUS GROUP DIFFERENT THAN THE JURORS, AND THE PROSECUTION PRESENTED
INFLAMMATORY EVIDENCE CONSISTING OF LITERATURE ADVOCATING RELIGIOUS WARS IN THE
NAME OF ISLAM, DENIED APPELLANT THE SIXTH AMENDMENT RIGHT TO AN IMPARTIAL JURY
Appellant was charged with a violent act of terrorism resulting in
the death of 6 people, injuries to scores of others, and hundreds of millions
of dollars of property damage. At the trial, the prosecution Introduced into
evidence documents and literature which essentially espoused in the name of
Islam, what most people would label as fanatical religious propaganda against
Zionism (7349), against Jews who kill Muslims (7355), using explosives in the
name of "Allah", (7431-32), advocating Jihad (religious war) by
combat and pistols (7455), gaining knowledge of explosives in the struggle
against Zionists (7433), the necessity for a military organization against the
hostile powers, the Christians, Zionists, and the United States who conspire
against Islam (7455), and terrorism as a religious duty of Muslims (7470).
These documents were admitted into evidence against appellant.
Knowing prior to jury selection that the prosecution planned to
introduce these documents into evidence, and given the historical context of
recent years of sensational media attention to Islamic fundamentalism going
back to the Iran hostage crisis, and the current massive publicity attendant on
this case before and during trial, appellant requested that the District Court,
during its voir dire of the jury, question the potential jurors about their
knowledge and feelings towards *113 Muslims, Arabs, and Islamic Fundamentalism
to determine whether they had any bias against appellant, members of
appellant's ethnic group, and, most significantly, against Islamic
Fundamentalism, which would be exacerbated by introduction of the inflammatory
literature. (384-87, 423-26, 434-37). For example, after a juror had stated
during the voir dire that she had already concluded that the defendants were
guilty but she was willing to suspend that judgment and listen to the evidence
(346) she was asked only the barest, general questions concerning Muslims
limited to (1) whether she had ever traveled to the Middle East; (2) whether
she had any views which would prevent her from judging people of the Muslim
faith; (3) whether she had any Muslim friends or business associates; (4)
whether she had any business dealings with Muslims; and (5) whether she could
be "be fair and impartial here" (348). Counsel for appellant, who
along with the other defendants had submitted proposed written voir dire
questions, specifically asked the Court to make a more detailed inquiry stating
I still think ethnicity is important in this case, ...I think it
is much more than has a person traveled to the Middle East. We are talking
about racial prejudice, and when you ask bias, it is too general. I think you
have to be more specific because we have defendants here who are Palestinian,
who are Egyptian.
349-50). Counsel later again made this same request stating that
the Court's limited inquiry was not enough to determine whether a potential
juror was biased and suggesting that the court ask, "Do you have an
opinion about Islam?" and "Do you know what Islam is?" (385)
Counsel for appellant later explained that the limited inquiry made by the
Court concerning the juror's potential bias did not provide him with the basis
*114 for exercising his preemptory challenges and that he had no basis for
judging the potential juror's feelings and perceptions about fundamentalism or
"jihad" (437). The Court refused to make such inquiry stating that
the inflammatory literature would play no part in the trial, because
"religion is not on trial" (386), and essentially limited the inquiry
to only asking the jury panel whether they knew any Muslims, had ever traveled
to the Middle East, and whether they would have any difficulty judging the
defendants because they are Muslims. (The questions were not always phrased in
the identical manner.) At the trial, the Court did in fact allow the
prosecution to introduce the multitudes of exhibits which implicated Islamic
teachings and equated them with terrorism. Thus, contrary to the Court's
dismissal of the reality of the issue, Muslims and Islamic Fundamentalism were
an integral part of the trial which should have required the District Court to
make the bias inquiry of the potential jurors as requested by appellant.
The limited bias inquiry made by the Court during voir dire in
this case can be contrasted with the much more extensive inquiry made of the
potential jurors in the second trial involving, inter alia, allegations of the
bombing of the World Trade Center, by Muslim defendants, the case of U.S. v.
Rahman, Ind. No. 93 Cr. 181 (MBM). In the latter case, the Court submitted the
much more probing, detailed questions requested by the defense in this case,
such as:
Do you know anything about, or have any opinion about, the
teachings or doctrines of Islam? If yes, please explain. Have you read about,
visited, or formed impressions or opinions about the following countries?
Afghanistan, Algeria, Arab Emirates, Bosnia and Herzegovina, Egypt, Iran, Iraq,
Israel, Jordan, Kuwait, *115 Libya, Morocco, Pakistan, Palestine, Saudi Arabia,
Serbia, Sudan, Syria, Tunisia, Yemen. If yes, please explain. Do you have any
negative or positive feelings or opinions about people of Arab descent? If yes,
please explain. Is there anything about a case where all the defendants are
Muslims (which means the practice of Islam) that would make it hard for you to
serve as a juror?
A defendant's right to trial by an impartial jury is granted by
the Sixth Amendment to the United States Constitution. it has long been
recognized that voir dire of the jury panel is the mechanism by which the judge
can determine whether to remove a prospective juror who will not be impartial
in a given case as well as the mechanism by which the defendant can determine
how to exercise his or her peremptory challenges. Rosales-Lopez v. United
States, 451 U.S. 182 (1981). While federal judges have substantial discretion
in determining how to conduct the voir dire, there are constitutional requirements
imposed with respect to questioning potential jurors about racial or ethnic
bias. Where, as in this case, ethnic or racial issues are "inextricably
bound up with the conduct of the trial" the Constitution requires the
questioning of potential jurors on those issues. Rosales-Lopez v. United
States, supra, at 189.
A somewhat analogous problem arose in the case of United States v.
Frasch, 818 F.2d 631 (7th Cir., 1987). There the Seventh Circuit stated that in
order to mitigate the prejudicial potential of highly offensive language which
would be introduced against the defendant at trial, the trial court should
first consider deleting it, and then should, "question the venire panel,
using the actual language that the jury will later hear." Id. at 634.
In this Circuit, the " 'substantial indications that *116
racial or ethnic prejudice will likely affect the jurors' " in this case
should have been enough to require the requested voir dire. United States v.
Kyles, 40 F.2d 519, 524 (2d Cir., 1984). In United States v. Gillis, 942 F.2d
707, 709-710 (10th Cir., 1991) the Court, addressing the Sixth Amendment right
to a trial by an impartial jury, held, as it would undoubtedly here,
A district judge abused that discretion if the scope of voir dire
is so limited that it does not create any reasonable assurances that prejudice
would be discovered if present. United States v. Hurley, 746 F.2d 725, 727
(11th Cir., 1984).
The Tenth Circuit Court held that the "catch all"
question asked by the District Judge about whether panel members knew of any
reason why their impartiality would be impaired was insufficient to ensure an
unbiased jury. Likewise, the limited generalized questioning of the jury panel
by the District Court herein, despite trial counsel's repeated requests for a
more specific, probing inquiry, was insufficient to ensure defendant's right to
a trial by an impartial jury as guaranteed by the Sixth Amendment.
In addition to the Sixth Amendment right to an impartial jury, the
District Court's supervisory power over the federal trial mandated an
appropriate bias inquiry of the potential jurors. in Kyles, supra, 524, this
Court stated that, as in this case,
a reasonable possibility of racial or ethnic bias [sufficient to
require an exercise of the supervisory power by granting a defendant's voir
dire requests] exists when the defendant is "accused of a violent crime
and where the defendant and the victim are members of different racial or
ethnic groups."
This Court affirmed the District Court despite its failure to
allow inquiry of the jury on the issue of racial bias because there was no
physical or proprietary injury to anyone and thus *117 no interracial violence.
Id. at 525. The Court noted that the Supreme Court decision in Rosales-Lopez,
sets violent, interracial crimes apart from others because they
are more likely to stir racial prejudice in the jurors...
Id., at 525.
POINT IX
APPELLANT'S JOINDER AT A TRIAL WITH ONE CO-DEFENDANT WHOSE LUGGAGE
CONTAINED HATE LITERATURE WHICH WAS INTRODUCED AGAINST APPELLANT AND WITH
ANOTHER DEFENDANT WHO ARGUED THAT AN ASSOCIATE OF APPELLANT'S HAD MASTERMINDED
THE PLOT TO BLOW UP THE WORLD TRADE CENTER DEPRIVED APPELLANT OF A FAIR TRIAL
AND DUE PROCESS OF LAW
Hate literature and video tapes seized from co-defendant Ahmed
Ajaj and containing references to a holy war waged by Muslims against Christians,
Jews and the United States were erroneously admitted against appellant solely
because he was tried jointly with Ajaj. Also because of the joinder,
appellant's defenses of no conspiracy and no knowing association with bombers
were prejudiced by co-defendant Salameh's argument that Ramzi Yousef, a man
whom the prosecution characterized as a close associate of appellant, had
masterminded the bombing.
Severance should have been granted under the Fifth and Sixth
Amendment rights to a fair trial and due process of law and under FED.R.CRIM.P.
14 because the joint trial "prevent[ed] the jury from making a reliable
judgment about guilt or innocence" of appellant apart from these
inflammatory and antagonistic attributions. Zafiro v. United States, 506 U.S.
534, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993). The denial of severance was an
abuse of discretion, United States v. Harwood, 998 F.2d 91, 95 (2d Cir., 1993),
also because a *118 ground for reversal specifically referred to in Zafiro was
present, evidence admissible against one but not all of the trial defendants.
Zafiro, 113 S.Ct. at 938; United States v. Haynes 16 F.3d 29, 32 (2d Cir.,
1994). The Court in Zafiro further cautioned that the risk of prejudice is
heightened in complex cases, as here, when defendants, with, according to
prosecution characterization of the evidence, "markedly different degrees
of culpability," are tried together. Id. (citing, Kotteakos v. United
States, 328 U.S. 750, 774-775, 66 S.Ct. 1239, 1252-1253, 90 L.Ed. 1557 (1946).
Prejudice might be mitigated by curative instructions to the jury, Zafiro,
supra; United States v. Harwood, supra, 998 F.2d at 96, but none were given in
this case.
It is evident that the trial Court abused its discretion by
denying a severance. There is no question that the hate literature and video
tapes were inadmissible against appellant and would not have been received at a
separate trial. [FN22] The items were recovered nearly six months before the
explosion, from a co-defendant who was wholly unconnected to appellant. There
was no evidence that appellant even knew Ajaj. in fact, Ajaj was detained by
INS upon his arrival in the United States and did not formally enter the
country until his release, which occurred after the explosion. Additionally,
there was no evidence that appellant embraced the ideas or exhortations
contained in the documents, indeed, there was no evidence that Ajaj did. Not
only lacking probative value, the literature and video tapes were highly
inflammatory and *119 excessively prejudicial. FED.R.EVID. 401, 403 (See Point
VII).
FN22.
Appellant independently challenges the admissability of the hate literature and
video tapes on First Amendment, relevance, and prejudice grounds. See supra,
Point VI.
In addition, this was not a simple case. See Zafiro, 113 S.Ct. at
938; United States v. Tutino, 883 F.2d 1125, 1132 (2d Cir., 1989); United
States v. Potamitis, 739 F.2d 784, 790 (2d Cir., 1984). The government
presented a mass of technical, expert, and disconnected circumstantial evidence,
purportedly supporting a complex theory about the chemical composition of a
bomb, its housing, and the link to the defendants, which rested on innocuous
facts of association that lumped defendants together and which required
tremendous scrutiny to fairly evaluate the existence of a conspiracy and the
participation of its alleged members. Moreover, the "guilt by
association" environment that surrounds conspiracy prosecutions,
especially when Pinkerton liability is introduced, frustrated the jury's ability
to assess the evidence as to each, and therefore elevated the potential for
prejudice. It would defy logic to suggest that the hate literature and video
tapes did not substantially prejudice appellant's right to have the evidence
viewed independently against him.
Here, the prejudicial effect is greater than the one anticipated
by the Supreme Court in Zafiro, because appellant was saddled with the
erroneous application of the evidence to him. Thus the "spillover"
was direct and unmitigated, and the jury had no idea that it was supposed to
compartmentalize it depending on its admissibility as to each defendant.
Tutino, 883 F.2d at 1130. In the instant case, the evidence was erroneously
admitted against appellant and it was therefore impossible for him to overcome
the ensuing prejudice.
Additionally, there was no curative charge to *120 diminish the
harm. In fact, the Court's ruling exacerbated the prejudice because, instead of
cautioning the jury to disregard the hate literature and video tapes as to
appellant, they were permitted to hold it against him. As such, remedial
instructions, frequently relied upon by appellate courts to sustain trial court
rulings, were absent in this case. Zafiro 113 S.Ct. at 938-39; Harwood, 998
F.2d at 96; Tutino, 883 F.2d at 1130.
The prosecutorial efficacy of guilt by association by joint trial
became overt and expressed when Salameh suddenly admitted in summation the
existence of the conspiracy and claimed that his and appellant's associate,
Yousef, had duped them into it. Although Salameh argued this only with respect
to himself, the effect was to draw all of Yousef's associates into the plot,
because they had also been with Yousef and Salameh on several occasions. The
jury would find it difficult to accept that an entire group of people were
duped about Yousef's plans. Aside from this argument by Salameh, there was no
evidence that appellant knew anything or did anything under Yousef's direction.
The Court below and the prosecutor have both acknowledged that
appellant and Salameh presented antagonistic defenses (See Statement of Facts,
supra, Section IX). Antagonistic defenses are not per se reversible, Zafiro,
supra, however, reversal is appropriate if the denial to sever, or in this case
to grant a mistrial due to the lateness in the trial of the prejudice,
"prevent[s] the jury from making a reliable judgment about guilt or
innocence," a determination that turns on the facts of the given case. Id.
at 938. Appellant *121 anticipated general prejudice and moved pre-trial for a
severance, thereby preserving his right to a mistrial in the event his fears
materialized. Here, the specific unanticipated antagonism of the Salameh
summation surfaced at the close of the trial thereby precluding appellant from
mitigating the prejudice, and a mistrial should have been granted. It was
undoubtedly a shocking turn of events when Salameh's attorney gave up what he
and his co-counsel had consistently maintained, that there had been no
conspiracy.
In this case, appellant's defense was meticulously developed over
a long period of time from bits and pieces of circumstantial evidence fought
fact by fact. Without question, the length of the trial transformed the
positions taken by the litigants into indelible impressions on the jury. Common
sense dictated that a sudden disassociation with the established strategy
implied a lack of confidence in the defense, an occurrence which would
profoundly effect the jury.
POINT X
APPELLANT WAS DENIED COUNSEL OF CHOICE, EFFECTIVE ASSISTANCE OF
COUNSEL, AND AN IMPARTIAL JUDGE AT SENTENCING, AND THE SENTENCE VIOLATED
STATUTES, GUIDELINES AND THE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND
AGAINST DOUBLE JEOPARDY
At proceedings on April 15, 1994, conducted without appellants and
without permitting chosen counsel to speak, the trial Court disqualified
counsel of choice. The Court refused to hear arguments that counsel had no real
conflict of interest and that any speculative conflict would be knowingly and
intelligently waived. On May 10, 1994, only two weeks prior to sentence, the
Court assigned new counsel and refused new assigned counsel's request for a
continuance to *122 permit counsel to obtain the 10,000 page trial record and
to read and analyze it for the purposes of preparing for sentence and for
investigating and preparing a new trial motion based on ineffective assistance
of ??ial counsel and new evidence. The Court then proceeded to sentencing on
May 24. It again denied continuances to new counsel, made factually inaccurate
allegations against appellant, which new counsel was unprepared to meet,
revealed personal animus against the appellants, and imposed a collective
sentence against all the appellants that violated the statutes, guidelines, and
Constitution.
A. Denial of Counsel of Choice
The trial Judge summoned counsel to Court on April 15, 1994, and
without the presence of the appellants, and without permitting counsel to
speak, summarily disqualified him on the grounds that he could not represent
defendants who could possibly cooperate against his clients in a related case
(Tr. April 15, 1994, at 3). The Court refused to hear or consider the fact that
appellants had already eschewed such cooperation (Id at 4).
Appellants sought a writ of mandamus from this Court directing the
trial Court to accept their counsel of choice. At oral argument on May 3, 1994,
the panel of this Court, Pratt, J., Walker, J., and Leval, J., opined that
perhaps the trial Judge had not completed his deliberations on the matter and
that mandamus was premature because the Judge had adjourned the sentence from
May 4 to May 24. [FN23] The panel also suggested *123 that the issue could more
properly be raised on direct appeal. On the substance of the issue, in the
course of the following colloquy with a Justice of this Court, the prosecutor
represented that if the mandamus were denied he would urge the trial Court to
hold a hearing pursuant to United States v. curcio, 694 F.2d 14 (2d Cir.,
1982).
FN23. in
fact, new counsel had not yet been assigned as of May 4, therefore the
sentencing could not proceed. (See infra, section B).
Tape recording of oral argument, May 3, 1994, In Re Abouhalima,
et. al, No. 94-3038.
*124 The mandamus was denied on May 3, and thereafter newly
assigned counsel wrote to the trial Court, copy to the prosection, that,
"Defendant has a Constitutional right to the lawyer of his choice, William
Kunstler, and this Court should allow Mr. Kunstler to appear or hold a
hearing." (Letter of Lawrence Stern to the Court, May 20, 1994, See Appellant's
Appendix). The prosecution neither replied nor did what it had promised this
Court during the mandamus argument. Instead, at the sentence proceedings on May
24, the prosecution argued , "The defendants have maintained through their
... insistence on certain counsel representing them, their dismissal of trial
counsel, that they have rejected essentially the American system of justice in
these proceedings." (Tr. sentence proceedings May 24, 1994, at 20). The
Trial Court ruled,
Mr. Stern suggests that everybody has a right to counsel of his
choice. That's not true and Mr. Stern knows it. A person has a right to counsel
where the counsel is conflict free.
(Id at 15). on June 14, 1994, a month after the sentencing, the
trial Court filed a written opinion on the issue because it believed that newly
appointed counsel, by asking again that appellants be permitted to have the
lawyers they wanted and by asking for a Curcio hearing, had not understood that
the Court could summarily disqualify a lawyer who has a conflict so
"pervasive and readily apparent" as the one chosen by appellants.
United States v. Salameh, 856 F. Supp. 781 (1994).
In fact, there was no conflict. Appellants knew of the option of
cooperation and rejected it. Counsel tried to tell that to the trial Court on
April 15, but counsel was ordered to sit down and be silent. He told that to
this Court during oral argument on the mandamus. Appellants told that to *125
the Court at sentencing (Tr. May 24, 1995 at 28, 47, 63).
The trial Court's outright disqualification of counsel on the
simple ground that he represented multiple defendants in the same case is
directly contrary to the requirement of United States v. Curcio, supra, that a
hearing be held to explore the reality of any potential conflict and the knowledgeability
of a defendant's waiver in such situations. Appellant was thus denied the Sixth
Amendment right to counsel. Any burden to show that he would not have been
sentenced or that he would not have received the sentence that he did would be
"well-nigh 'insurmountable'," therefore the sentence should be
vacated and the matter remanded. United States v. Curcio, supra, at 20, citing
Armstrong v. McAlpin, 625 F.2d 433, 441 (2d Cir., 1980) (en bane), vacated on
other grounds, 449 U.S. 1106 (1981).
B. Denial of Effective Assistance of Assigned Counsel
On April 15, after the trial Court disqualified counsel of choice,
it ordered prior trial counsel to telephone chambers on April 25, to "tell
me whether you are in or you are out. And if you are out, I have to arrange to
get a CJA counsel for each of these people and appoint them. But I will do that
at the appropriate time." (Tr. April 15, 1994 at 16). Thus, the Court did
not even begin the process of attempting to find new counsel for appellant
until after April 25, nine days before the scheduled May 4 sentence date. When
that process was not completed by May 4, the Court adjourned the sentence date
to May 24. New counsel for appellant Abouhalima was not officially assigned
until May 10, two weeks before sentencing. (See CJA appointment voucher,
Appellants' Appendix).
*126 Appellant was incarcerated at Lewisburg, Pennsylvania, a four
hour drive from New York. Unmonitored attorney-client phone calls were not
permitted. A visit could not extend past 3 P.M. New counsel could not get the
trial record; trial counsel refused to give over the transcript or any other
materials, except the Presentence Report. The trial transcript is 10,000 pages
long and could not in any case be read in the time for sentence. New Counsel, over
his objections and after denials by the Court of requests for continuances, had
to appear at sentence effectively ignorant about the facts of the case and
about his client whom he was able to arrange to see for only one 5 hour
interview prior to sentencing at the Lewisburg Penitentiary. (See Letters of
Lawrence Stern, Esq. to the Court, May 16 and May 20, 1994, Appellant's
Appendix).
There was absolutely no reason why sentence could not be postponed
to allow new counsel to read the record and make informed arguments relevant to
sentence, as well as to investigate, assess, and present a motion for a new
trial. [FN24] A continuance is required when new counsel is appointed shortly
before the scheduled start of proceedings, particularly when the files on the
case are not available to him. United States v. Millan-Colon, 834 F.Supp. 78
(S.D.N.Y., 1993). This Court holds that a sentence will be vacated where the
trial Court has *127 failed to give sufficient time for sentence preparation.
United States v. Palta, 880 F.2d 636 (2d Cir., 1989); See also United States v.
Prescott, 920 F.2d 139 (2d Cir., 1990). Here, the Court also denied to
defendants, who had Arabic translators throughout the trial, Arabic
translations of the Presentence Report. A defendant is entitled to an effective
opportunity to respond to the sentence position advanced by the prosecution,
and to contest the accuracy of the Presentence Report, and the facts relied on
by the trial Court. United States v. Alexander, 860 F.2d 508 (2d Cir., 1988); United
States v. Helmsley, 941 F.2d 71 (2d Cir., 1991); United States v.
Mescaine-Perez, 849 F.2d 53 (2d Cir., 1988); F.R. Crim. P.32. The right to
contest the factual allegations of the Presentence Report will be strictly
adhered to. Dunston v. United States, 878 F.2d 648 (2d Cir., 1989). Effective
assistance of new counsel at sentencing means counsel who can effectively
marshal available mitigating evidence and make arguments in mitigation,
particularly where there is a claim that trial counsel was ineffective, as
there was here. United States v. Daniels, 558 F.2d 122 (2d Cir., 1977). It is
error to deny an adjournment to new counsel appointed at sentencing,
particularly when the transcript of trial is not available. United States v.
Sullivan, 694 F.2d 1348 (2d Cir., 1982).
FN24.
The motion for a new trial that could have been made, had there been time, has
now been made in this Court as a motion for remand. The merits of the motion,
the detailed knowledge of the case, and the new evidence required to make it
are obvious from the face of the motion. Should this Court remand for
resentencing, it could include in the remand the right of appellant to make the
motion in arrest of judgment.
The Court's reason for denying any continuance was that new
counsel had asked for a date for sentencing in September, 1994, an adjournment
of three to four months to learn from scratch about a massive six month trial
of complex circumstantial evidence and about which appellant was claiming trial
counsel had ineffectively represented him and failed to *128 adduce evidence on
his behalf. The Court denied any continuance because the continuance counsel
asked for was too long for the Court (Tr. May 24, 1994 at 9-10), but the
requested length of the continuance was reasonable under the circumstances, and
certainly an attorney's estimate of what he needs is not reason in itself to
deny a continuance altogether.
The Court later gave two months to new counsel appointed for Ramzi
Yousef, who was arrested in January, 1995, just to read the same transcript for
which no time was accorded counsel in this case. (Proceedings, United States v.
Salameh, et., al. (Ramzi Yousef), 93 Cr. 180 KTD, February 24, 1995).
Thus the Court denied effective assistance of counsel and failed
in its obligation to take appropriate steps to ensure fairness and accuracy of
the sentence process. United States v. Robin, 545 F.2d 775 (2d Cir., 1976). The
result was a Presentence Report and a sentence based on factual errors and
erroneous assumptions about the extent of appellant's guilt, if any, based on
allegations about the evidence, none of which counsel could knowledgeably
address at the time. See subsection C, infra. The illegalities in the sentence
even to the extent they were not raised below, may be noticed by this Court on
appeal as plain error. United States v. Soto, No. 94-1021, (2d Cir., February
10, 1995).
C. The Sentence in Violation of Double Jeopardy, Due Process,
Statute and Guidelines
The Court imposed the same sentence on all four appellants, based
on the life expectancies of the victims. The Court expressly ignored the
Presentence Report and any individual characteristics of the appellants and the
quantum *129 and nature of the evidence against each of them. As such the
sentence violated the statutory right to "individualized sentencing".
United States v. Amato, 15 F.3d 230 (2d Cir., 1994); 18 U.S.C. ¤ 3553(a). It
violated the requirement that the Presentence Report and any factual errors
therein be taken into account, United States v. Romano, 825 F.2d 725 (2d Cir.,
1987); F.R. Crime P.32. It denied appellant the right to have the Presentence
Report corrected, notwithstanding the alleged harmlessness of any errors.
United States v. Arefi, 847 F.2d 1003 (2d Cir., 1988).
The factual errors in the Report were numerous and contributed to
the Report's exaggerated view of the evidence of appellant's role, even
assuming his guilt based on the verdict. The Court shared this mistakenly
distorted view of the evidence, but counsel, who had not been given time to
read the record, could not correct it.
The Report claimed that appellant had been convicted of knowingly
and intentionally causing death (p.28 ¦116). There was no such evidence. There
was not even such a charge in the indictment. The Court instructed the jury
that only intent to damage property was charged (9156-57).
The Report claimed that appellant bought some gunpowder two months
before the explosion (p.10, ¦32) but it omitted the facts that it was not the
same gunpowder found at the storage locker and that the gunpowder found there
was mixed with another chemical (3047-50, 6912, 6962-63). The Report implied
that because no guns or ammo were found in appellant's apartment, the purchase
of the gunpowder must have been to bomb the World Trade Center. Aside from the
inferential chasm *130 between the fact of this purchase and the conclusion,
the gunshop proprietor testified that appellant first asked to purchase
ammunition at the gunshop and only bought the gunpowder for reloading
ammunition after hearing that the price of the ammunition itself was too high
(3050-58).
The Report claimed that appellant helped rent the apartment at 40
Pamrapo in Jersey City, which the prosecution claimed was the bomb factory
(p.10, ¦33). In fact the testimony was that the help was given by appellant's
brother Mohammad and that the apartment he offered to help find was in Newark,
not Jersey City (2861, 5606-06, 5542, 8968).
The Report claimed that appellant was seen at 40 Pamrapo nightly
(p.10, ¦34). In fact neither of the two witnesses who described the people who
visited that address testified to seeing appellant there, and one of the two
testified that appellant was not the person with the "weird" red hair
who he saw there. Furthermore the witness testified that the red haired man was
there several times a week, not nightly (3343-54, 3378-79, 3386-92).
The Report claimed that appellant mixed chemicals at 40 Pamrapo
(p.10, ¦34). There was no such evidence. Infinitesimal sulphur ions on one shoe
among all the clothing seized from his apartment, required a conclusory leap
without evidence to get to his mixing chemicals at 40 Pamrapo. This is
particularly so given the chemist's own testimony that sulphur ions are not the
equivalent of sulfuric acid, and that such ions could be deposited on a shoe in
innocuous ways (7016-17, 7182-83). The Report claimed that magnesium sulphate
was also found on the shoe and that magnesium is a chemical which can be *131
used in bombs (p.10, ¦34). But the testimony at trial was that magnesium
sulfate is common Epsom Salt and is used in the dye and tanning of the shoe
itself and that it contains sulphur which could have accounted for the sulphur
ions themselves (7160-67, 7294).
That appellant purchased a refrigerator years before the explosion
and that it was found with Yousef's prints in an apartment unrelated to appellant
two months after the explosion evidences nothing but a possible association
between Yousef and appellant (p.11, ¦37; 5583-94, 7733).
Appellant's telephone credit card was used by others to make the
phone calls which the prosecution claims were incriminating only because they
were made to numbers registered to chemical companies (p.11, ¦39). That the
calls were unauthorized is evidenced by appellant's attempt to cancel the card
on February 8, 1993, weeks before the explosion (6545-51), but the report
omitted this fact (p.11, ¦39). Furthermore, when appellant called again on
February 26, he did not ask that the calls be "erased," as the Report
would have it (p.12, ¦ 47). Rather he called again to cancel the charges,
because on that date he received the bill and was surprised to learn that his
prior February 8 order of cancellation had not been effective (6545-51). The
Report omitted all this.
Contrary to the Report (p.13, ¦48), appellant had not been asked
to comment on the bombing of the World Trade Center when he uttered the phrases
attributed to him on the airplane flight from Cairo to the United States.
Rather he was led to repeat the name of the Street, Pamrapo, when the
interrogator first asked him about it without a context. He was *132 additionally,
but unsuccessfully, led to repeat the name Rashed, an alias of Yousef, after he
asked about a different person named Rashid (5957-82). Furthermore had newly
assigned counsel been given a reasonable continuance, he could have presented
the evidence presented on the motion for remand filed in this Court, that
appellant's mutterings were the result of the torture he had undergone
immediately prior to being placed on the airplane (See the motion).
These and the other errors in the interpretation of the scant
circumstantial evidence against appellant (as set forth more fully in the
Statement of Facts, section I, and Argument, Point I, supra) should have given
the Court pause in sentencing appellant to life without parole. The Court,
however, refused even to consider arguments that if guilt must be assumed for
purpose of sentencing the evidence at best proved appellant's association with
others and knowledge of some kind of a plan involving explosives. The Court
refused to consider that there was no evidence in this case that appellant had
more than a tangential role at most, that there was not a scintilla of evidence
of knowledge that the plan was to blow up buildings, including the World Trade
Center, no evidence of more than de mimimus participation, and no evidence of
intention to join a conspiracy of the scope charged in the indictment (Sentence
proceedings, May 24, 1994, at 52) [FN25] United States v. Studley, No. 1228 (2d
Cir., February 13, 1995) (Court at sentencing must consider scope of each
conspirator's *133 agreement and what was foreseeable within that agreement).
FN25.
The Court retorted, "Downward departure? What downward departure would you
have in a case involving where there are six dead people?"
The Court relied on its own assumptions of fact nowhere supported
in the record, that appellants intended to topple one tower of the World Trade
Center into another, that victims were permanently damaged by gas, and that
more would have been, except for vaporization (Id, at 36-37). The Court was
apparently blinded by personal feelings of animosity against appellants,
overtly expressed in the epithets "cowardly hypocrite," "sneak
and coward" and "lowest of the low" which it used in justifying
its sentence and disregarding appellants' attempts at mitigation. The
appearance of prejudice which manifests in a court's imposition of sentence is
reason to vacate it as well as to vacate the underlying conviction. United
States v. Edwardo-Franco, 885 F.2d 1002 (2d Cir., 1989); Offutt v. United
States, 348 U.S. 11, 14 (1954). [FN26] Reliance on errors of fact at sentencing
also requires vacatur. United States v. Fatico, 579 F.2d 707 (2d Cir., 1978).
FN26.
This Court should direct that upon remand the case should be assigned to a
different Judge. United States v. Diaz, 797 F.2d 99 (2d Cir., 1986); United
States v. Torkington, 874 F.2d 1441 (11th Cir., 1989); United States v.
Goldfaden, 959 F.2d 1324 (5th Cir., 1992).
The Court also sentenced appellant based on erroneous
interpretations of the Guidelines and in derogation of the Constitutional
rights to due process of law and against double jeopardy. The Guidelines for
intentional and premeditated murder (2A1.1 and 2K1.4) were erroneously applied
because three was no evidence of intent to kill. Indeed, intent to kill was not
an element of the crimes charged. The Court instructed the jury that only
intent to damage buildings was necessary to the *134 prosecution's requisite
proof (9156-57). Thus, the jury could well have convicted on intent to bomb
uninhabited buildings, particularly since there was no evidence that appellant
knew of or planned to bomb any particular structure, let alone an inhabited
one. The Court refused to consider the inapplicability of the murder guideline
or even to acknowledge its power under that Guideline to depart downward based
on the absence of evidence of intent and based on the absence of evidence that
appellant played more than a tangential role in any plot. United States v.
Correa-Vargas, 860 F.2d 35 (2d Cir., 1988); United States v. Monk, 15 F.3d 25
(2d Cir., 1994); United States v. Concepcion, 983 F.2d 369, 385-89 (2d Cir.,
1992); U.S.S.G. ¤ 2A1.1 and Application Note 1. For the same reasons, the Court
should have considered and imposed a sentence with a downward adjustment and an
additional downward departure for appellant's minimal role. U.S.S.G. ¤ 3B1.2;
United States v. Restrepo, 936 F.2d 661, 667-668 (2d Cir., 1991).
The Court also erroneously added two consecutive 30 year sentences
for Counts 9 and 10, which charged violations of 18 U.S.C. ¤ 924(c) for use of
an explosive device in the commission of two of the underlying crimes of
conviction (Counts 1 and 8), the elements of which already included use of an
explosive device. Thus, with respect to each of the two underlying crimes, the
element of use of an explosive device was counted once in the setting of the
offense level and counted again in the Court's imposition of an additional ??0
years based on the same element. Furthermore, the 30 year sentences were not
only added to each of the offenses they *135 were pyramided on top of each
other, resulting in treble counting of the same element and a violation of the
Guidelines, the statutory sentences for the crimes, and the Constitutional
right against double jeopardy. Busic v. United States, 446 U.S. 398 (1980);
United States v. Lindsay, 985 F.2d 666 (2d Cir., 1993).
The upward adjustment in offense level for obstruction of justice
(U.S.S.G. ¤ 3C1.1) based on appellant's alleged flight after the explosion was
erroneous. Mere flight to avoid arrest does not constitute obstruction of
justice. United States v. Stroud, 893 F.2d 504 (2d Cir., 1990); United States
v. Alpert, 28 F.3d 1104 (11th Cir., 1994); United States v. Polland, 994 F.2d
1262 (7th Cir., 1993); United States v. Lamere, 980 F.2d 506 (8th Cir., 1992)
The Court's imposition of $250,000 in fines and $250,000,000 in
restitution were improper. Appellant is indigent. He had pro bono counsel at
trial, and the Court appointed counsel for him at sentencing because of his indigence.
The Presentence Report reported that his wife and four children were receiving
welfare. Fines should be waived when a defendant is indigent. United States v.
Wong, 40 F.3d 1347 (2d Cir., 1994). The fact that the defendant is represented
by assigned counsel establishes indigence. United States v. Stevens, 985 F.2d
1175 (2d Cir., 1993). Where the Presentence Report provides facts of indigence,
a fine will be reversed. United States v. George Rivera, 971 F.2d 876 (2d Cir.,
1992); United States v. Enrigue Rivera, 22 F.3d 430 (2d Cir., 1994). At the
very least, a defendant must be given the opportunity to show his indigence,
and any fine imposed without *136 that opportunity will be reversed. United
tates v. Stevens, supra. Here, the Presentence Report states that at the
insistence of the Bureau of Prisons appellant was bound throughout the
Presentence interview and therefore could not sign the requisite authorizations
for bank records, tax returns, and the like, therefore he was precluded from
any further demonstration of his indigence, and the fines must be vacated.
The restitution order of $250,000,000 fails, because there is no
indication in the record that the Court considered all the factors required by
18 U.S.C. ¤ 3664, including appellant's inability to pay and the needs of his
wife and children. United States v. Gelb, 944 F.2d 52 (2d Cir., 1991). A
restitution order, as the one here, which merely imposes the amount of loss to
the victims without consideration of all the other factors will be reversed.
United States v. Tortora, 994 F.2d 79 (2d Cir., 1993). Furthermore, this
indigent defendant, who, if the conviction is affirmed, will remain imprisoned
for at least the five years mandated by statute for payment of the restitution,
will not be able to comply in the statutory time period. The restitution order
must be vacated under those circumstances. United States v. Porter, 41 F.3d 68
(2d Cir., 1994); United States v. Bailey, 975 F.2d 1028 (4th Cir., 1992);
United States v. Sleight, 808 F.2d 1012 (3rd Cir., 1987). The Court's attempt
to justify the restitution order on the possibility that appellant might write
a book about the case does not sustain the order. Such orders based on mere
fortuity and speculation must be reversed. United States v. Wong, supra,;
United States v. Seale, 20 F.3d 3279 (3rd Cir., *137 1994). Finally, the
restitution order must fail, because the victims were undoubtedly compensated
by insurance 18 U.S.C. ¤ 3579(E)(1).
POINT XI
PURSUANT TO RULE 28 (i) OF THE FEDERAL RULES OF APPELLATE
PROCEDURE, APPELLANT HEREBY ADOPTS BY REFERENCE AND INCORPORATES HEREIN ALL
POINTS AND ARGUMENTS OF CO-APPELLANTS TO THE EXTENT THEY ARE APPLICABLE TO
APPELLANT, AND NOT INCONSISTENT HEREWITH.
CONCLUSION
FOR THE ABOVE STATED REASONS, THE JUDGEMENT OF CONVICTION SHOULD
BE REVERSED AND THE INDICTMENT DISMISSED, OR A NEW TRIAL ORDERED BEFORE A
DIFFERENT JUDGE OF THE DISTRICT COURT, OR, THE CASE SHOULD BE REMANDED FOR
RESENTENCING WITH LEAVE TO MOVE FOR ARREST OF JUDGMENT BEFORE A DIFFERENT JUDGE
OF THE DISTRICT COURT.
Appendix not available.
UNITED STATES OF AMERICA, Appellee, v. Mohammed A SALAMEH, Nidal
Ayyad, Mahmoud Abouhalima, also known as Mahmoud Abu Halima, Ahmad Mohammad
Ajaj, also known as Khurram Kham, Defendants-Appellants, Ramzi Ahmed Yousef,
Bilal Alkaisi, also known as Bilal Elgisi, Aboul Rahman Yasin, also known as
Aboud, Defendants.