|
l 92 F.Supp.2d 225 United States District
Court, S.D. New York. UNITED STATES of
America, v. Usama BIN LADEN, a/k/a “Usamah
Bin-Muhammad Bin-Ladin,” a/k/a “Shaykh Usamah
Bin-Ladin,” a/k/a “Abu Abdullah,” a/k/a
“Mujahid Shaykh,” a/k/a “Hajj,” a/k/a
“al Qaqa,” a/k/a “the Director,” a/k/a
“the Supervisor,” Muhammad Atef, a/k/a “Abu
Hafs,” a/k/a “Abu Hafs el Masry,” a/k/a
“Abu Hafs el Masry el Khabir,” a/k/a
“Taysir,” a/k/a “Sheikh Taysir Abdullah,”
a/k/a “Abu Fatimah,” Ayman al Zawahiri, a/k/a “Abdel
Muaz,” a/k/a “Dr. Ayman al Zawahiri,” a/k/a
“the Doctor,” Mamdouh Mahmud Salim, a/k/a “Abu Hajer
al Iraqi,” a/k/a “Abu Hajer,” Khaled al Fawwaz,
a/k/a “Khaled Abdul Rahman Hamad al Fawwaz,” a/k/a
“Abu Omar,” a/k/a “Hamad,” Ali Mohamed,
a/k/a “Ali Abdelseoud Mohamed,” a/k/a “Abu Omar,”
a/k/a “Omar,” a/k/a “Haydara,” a/k/a
“Taymour Ali Nasser,” a/k/a “Ahmed Bahaa Eldin
Mohamed Adam,” Wadih El Hage, a/k/a “Abdus Sabbur,”
a/k/a “Abd al Sabbur,” a/k/a “Wadia,” a/k/a
“Abu Abdullah al Lubnani,” a/k/a “Norman,”
a/k/a “Wa’da Norman,” Fazul Abdullah Mohammed, a/k/a
“Harun,” a/k/a “Harun Fazhl,” a/k/a
“Fazhl Abdullah,” a/k/a “Fazhl Khan,”
Mohamed Sadeek Odeh, a/k/a “Abu Moath,” a/k/a
“Noureldine,” a/k/a “Marwan,” a/k/a
“Hydar,” a/k/a “Abdullbast Awadah,” a/k/a
“Abdulbasit Awadh Mbarak Assayid,” Mohamed Rashed Daoud
Al-’Owhali, a/k/a “Khalid Salim Saleh Bin Rashed,”
a/k/a “Moath,” a/k/a “Abdul Jabbar Ali
Abdel-Latif,” Mustafa Mohamed Fadhil, a/k/a “Mustafa Ali
Elbishy,” a/k/a “Hussein,” a/k/a “Hussein
Ali,” Khalfan Khamis Mohamed, a/k/a “Khalfan
Khamis,” Ahmed Khalfan Ghailani, a/k/a “Fupi,” a/k/a
“Abubakary Khalfan Ahmed Ghailani,” a/k/a “Abubakar
Khalfan Ahmed,” Fahid Mohammed Ally Msalam, a/k/a “Fahad M.
Ally,” Sheikh Ahmed Salim Swedan, a/k/a “Sheikh
Bahamadi,” a/k/a “Ahmed Ally,” Defendants. No. S(6) 98 CRIM. 1023
(LBS). March 15, 2000. SUBSEQUENT HISTORY: Distinguished by: U.S. v. Welch, 198 F.R.D. 545 (D.Utah Jan.
12, 2001) (No. 00-CR-324 S) U.S. v. Rigas, 258 F.Supp.2d 299 (S.D.N.Y. Apr. 21, 2003) (No. 02
CR. 1236 (LBS)) U.S. v. Sattar, 314 F.Supp.2d 279 (S.D.N.Y. Apr. 20, 2004) (No. S1
02 395JGK) [*227] COUNSEL: Mary Jo White, United
States Attorney for the Southern District of New York, New York City, Kenneth
Karas, Patrick Fitzgerald, Michael J. Garcia, Paul Butler, Assistant United
States Attorneys. Paul McAllister, Charles D. Adler, George Goltzer, New York City,
for defendant Salim. James Roth, Lloyd Epstein, New York City, for defendant Mohamed. Samuel Schmidt, Joshua Dratel, Deborah I. Meyer, New York City,
for defendant El Hage. Michael Young, Carl J. Herman, Sandra L. Babcock, New York City,
for defendant Odeh. Leonard Joy, Robert Tucker, Mark Gombiner, David Bruck, New York
City, for defendant Al-’Owhali. Jeremy Schneider, David Stern, David Ruhnke, New York City, for
defendant Khamis Mohamed. MEMORANDUM AND ORDER JUDGE: SAND, District Judge. Defendants are charged with numerous offenses arising out of their
alleged involvement with an international terrorist organization led by
Defendant Usama Bin Laden (“Bin Laden”). Presently before the
Court are four motions, filed by Defendants Wadih El Hage (“El
Hage”), Mamdouh Mahmud Salim (“Salim”), Mohamed
Sadeek Odeh (“Odeh”), and Khalfan Khamis Mohamed
(“K.K.Mohamed”) seeking an order compelling the Government to
file a bill of particulars that is responsive to over 150 separate requests for
information. For the reasons set forth below, those motions are granted in part
and denied in part. The Government is ordered to file a bill of particulars,
but that bill need only be responsive to those specific requests that we
identify below. I. BACKGROUND The indictment presently before the Court, S(6) 98 Cr. 1023(LBS)
(the “Indictment”), charges the 15 named Defendants with 267
discrete criminal offenses. Eleven of the Defendants (all except Salim, Khaled
Al Fawwaz (“Al Fawwaz”), Ali Mohammed, and El Hage) are charged
with 229 counts of murder (see id. at
¶¶ 40-59), as well as nine other substantive
offenses [FN1] (see id. at ¶¶ 32-39,
56-65), based on the August, 1998 bombings of the United States embassies in
Nairobi, Kenya and Dar es Salaam, Tanzania. Defendant El Hage is charged with
twenty counts of perjury before a federal grand jury and three counts of making
false statements to [*228] special agents of the Federal Bureau
of Investigation (“FBI”). (See id. at
¶¶ 66- 96.) FN1. In a prior
opinion, this Court ordered two of those substantive offenses (two counts of
maiming) as well as two of the murder counts to be dismissed for lack of
jurisdiction. See United States v. Bin Laden, 92 F.Supp.2d 189
(S.D.N.Y. 2000). Each of the Defendants is also charged with participating in at
least five distinct criminal conspiracies; El Hage and Ali Mohamed are accused
of participating in six. (See id. at
¶¶ 10-31.) Although each conspiracy is charged under
a different provision of the federal criminal code, [FN2] the allegations
overlap to a significant degree. The six conspiracies are, for the most part,
alleged to have had the same four criminal objectives: (1) murder of United
States nationals; (2) killing of United States military personnel serving in
Somalia and on the Saudi Arabian peninsula; (3) killing of United States
nationals employed at the United States Embassies in Kenya and Tanzania; and
(4) concealment of the conspirators’ activities through the use of front
companies, false identity and travel documents, coded correspondence, and by
providing false information to authorities. (See id. at
¶¶ 11, 15, 19.) [FN3] All but one [FN4] of the
conspiracies are alleged to have been furthered by the commission of the same
set of 144 overt acts. (See id. at
¶ 12.) FN2. Count One alleges
a conspiracy to kill United States nationals, in violation of 18 U.S.C.
§ 2332(b); Count Two accuses El Hage and Ali Mohamed of
conspiring to murder, kidnap, and maim United States nationals outside of the
United States, in violation of 18 U.S.C. § 956(a); Count
Three alleges a conspiracy to commit murder, in violation of 18 U.S.C.
§§ 1111, 1114, and 1116; Count Four charges the
defendants with conspiring to use weapons of mass destruction against United
States nationals, in violation of 18 U.S.C.
§§ 2332a(a)(1) and 2332a(a)(3); Count Five charges a
conspiracy to destroy buildings and property, in violation of 18 U.S.C.
§ 844(f); and Count Six accuses the defendants of conspiring
to attack national defense utilities, in violation of 18 U.S.C.
§§ 2155(a) and 2155(b). FN3. Count Four lists
only the bombing of the embassies and attacking “American military
facilities in the Gulf Region and the Horn of Africa, and members of the
American military stationed in Saudi Arabia, Yemen, Somalia and elsewhere with
bombs” as the objects of the conspiracy. (Indictment at ¶ 23.)
Count Six does not separately set forth the objects of the conspiracy. (See
id. at ¶¶ 29-31.) FN4. The Indictment
expressly states that several of the overt acts alleged were not acts in
furtherance of the conspiracy charged in Count Six. (See id. at
¶ 31.) In a section labeled, “Background,” the
Indictment explains that the charges arise out of the Defendants’
alleged involvement with a vast, international terrorist network known as
“al Qaeda,” or “the Base.” (See id. at
¶ 1.) According to the Indictment, al Qaeda emerged in 1989,
under the leadership of Bin Laden and his two chief military commanders,
Defendant Muhammad Atef (“Atef”) and the now-deceased, Abu
Ubaida al Banshiri (“Abu Ubaidah”), replacing a predecessor
organization known as “mekhtab al khidemat,” or the
“Services Organization.” (Id. at ¶ 1, 6-7.)
Members of al Qaeda “pledged an oath of allegiance (called a ‘bayat’)
to Bin Laden and al Qaeda.” (Id. at ¶ 1.) The group
was allegedly headquartered in Afghanistan from 1989 until 1991, at which time
it re-located to the Sudan, ultimately returning to Afghanistan in 1996. (See id.)
According to the Indictment, al Qaeda functioned both on its own and in
conjunction with other groups—such as the “al Jihad”
organization in Egypt, Sheik Omar Abdel Rahman’s [FN5]
“Islamic Group,” the Iranian terrorist group, Hezballah, and
the Sudanese National Islamic Front—that shared its strong opposition
to the United States and a willingness to use violent, terrorist tactics in
furtherance of their shared goals. (See id. at
¶¶ 2, 4-5, 8.) [FN6] FN5. Sheik Rahman has
previously been convicted of conspiring to commit acts of terrorism against the
United States. See United States v. Rahman, 189 F.3d 88 (2d
Cir.), cert. denied, 528 U.S. 982, 120 S.Ct. 439, 145 L.Ed.2d 344 (1999). FN6. Defendant Salim
is charged with attending various meetings with an “Iranian religious
official,” and with “a ranking official in the National
Islamic Front” to arrange a tripartite agreement between al Qaeda, the
National Islamic Front, and “elements of the Government of Iran to
work against the United States, Israel, and other Western countries.”
(See id. at ¶¶ 12i-12l; see also id. at
¶ 12eeeee (charging Defendant Odeh with discussing
“the fact that Usama Bin Laden had formed a united front against the
United States with other Islamic extremist groups”).) [*229] The Indictment’s core factual allegations
are set forth in a 31- page section that appears under the heading
“Overt Acts.” (See id. at
¶ 12.) Without re-stating the entire litany of acts alleged
therein, it is fair to say that the basic pattern that emerges is one in which
al Qaeda, over a period of at least ten years, is said to have organized,
financed, inspired, and generally facilitated a variety of violent attacks
against United States personnel and property abroad. Some of the overt acts set
forth in the Indictment, such as detonation of the explosives that destroyed
the American embassies, are plainly violent acts in and of themselves. But many
of the overt acts alleged consist of seemingly non-criminal
conduct—such as writing letters, traveling, and engaging in business
transactions—which, according to the Indictment, facilitated the
violent attacks and thereby constitute overt acts in furtherance of the charged
conspiracies. A. The Organization The Indictment alleges that beginning at least in 1989, al Qaeda
established “training camps” and
“guesthouses” in various areas around the world, including
Afghanistan, Pakistan, the Sudan, Somalia, and Kenya. (See id. at
¶ 12a.) Al Qaeda members and the members of affiliated groups
allegedly received military [FN7] and intelligence training in those camps
under the direction of Defendant Ali Mohamed and others. (Id. at
¶ 12c). Defendant Salim allegedly managed some of the camps
in Afghanistan and Pakistan. (See id. at
¶ 12a). FN7. For instance,
Defendant Odeh allegedly received “explosives training” in
various camps in Afghanistan, including al Qaeda camps. (See id. at
¶ 12g.) The camps were allegedly operated under the auspices of a series
of business established by Bin Laden, Salim, and others. (Id. at
¶ 12d.) The businesses were used to engage in activities such
as purchasing land, warehouses, and equipment for the camps; and for
transporting currency and weapons [FN8] to al Qaeda members “in
various countries throughout the world.” (Id.) FN8. For example,
“[o]n at least two occasions” between 1992 and 1995
“members of al Qaeda transported weapons and explosive from Khartoum
in the Sudan to … Port Sudan for transshipment to the Saudi Arabian
peninsula.” (Id. at ¶ 12z.) Bin Laden is also
accused of attempting to obtain the component parts for chemical and nuclear
weapons. (See id. at ¶ 12bb-12cc.). Assistance from American citizens was allegedly essential to al
Qaeda’s operation. Two of the Defendants, Ali Mohamed and El Hage,
both American citizens, are accused of assisting the organization by traveling
“throughout the Western world to deliver messages and engage in
financial transactions for the benefit of al Qaeda….” (Id. at
¶ 12b.) According to the Indictment, Ali Mohamed and El Hage
exchanged messages with each other, and with other co-conspirators, through
letters (see id. at ¶¶ 12tt, 12uu,
12uuu, 12bbbb, 12gggg) and visits (see id. at
¶¶ 12xx), regarding al Qaeda activities and the whereabouts
of al Qaeda leaders (see id. at ¶¶ 12zz,
12nnn-12ttt, 12xxx, 12bbbb). B. The Fatwahs and Declarations of Jihad In addition to providing military and intelligence training,
obtaining weapons, establishing base camps, and coordinating the work of
various members around the globe, al Qaeda allegedly facilitated violent
attacks on United States interests by providing religious authority for those
attacks. From time to time, according to the Indictment, Bin Laden would issue
rulings on Islamic law, called “fatwahs,” which purported to
justify al Qaeda’s violent activities. Defendant Salim is accused of
supplementing these efforts by allegedly lecturing other members about the
appropriateness under Islamic law of engaging “in violent actions
against ‘infidels.’ “ (See [*230]
id. at ¶ 12aa.) Defendant Al Fawwaz, working out of
at Qaeda’s London office [FN9] (which he allegedly established in 1994
(see id. at ¶ 12qq)), would distribute Bin
Laden’s messages around the globe. (See id. at 12iii.) FN9. El Hage also is
accused of visiting Defendant Al Fawwaz in London (see id. at
¶¶ 12yy), after Al Fawwaz had established al
Qaeda’s office in that city, in furtherance of the
organization’s goals. The Indictment identifies a number of fatwahs allegedly issued by
Bin Laden. The first, issued some time after 1992, was that the United States
forces stationed on the Saudi Arabian peninsula should be attacked. (See id.)
In 1992 or 1993, Bin Laden allegedly issued another fatwah stating that United
States forces stationed in “the Horn of Africa, including Somalia,
should be attacked.” (Id. at ¶ 12m.) [FN10] Next,
according to the Indictment, on August 23, 1996, Bin Laden issued a
“Declaration of Jihad from Afghanistan Against the Americans occupying
the Land of the Two Holy Mosques.” (Id. at ¶ 12ggg.)
The Declaration was subtitled “Expel the Heretics from the Arabian
Peninsula.” (Id.) FN10. Defendant Salim
allegedly delivered lectures to that effect as well. (See id. at
¶ 12n.) Finally, in February, 1998 Bin Laden issued another fatwah,
eliminating the distinction between military and civilian personnel and stating
that “Muslims should kill Americans—including
civilians—anywhere in the world where they can be found.”
(Id. at ¶ 12jjjj.) A few months later, in May, 1998, Bin
Laden endorsed a fatwah characterizing the United States Army as “the
‘enemies of Islam’ “ and declaring a
“jihad” against the United States “and its
followers.” (Id. at ¶ 12llll.) That same month,
according to the Indictment, Bin Laden held a press conference, attended by
Defendants Atef and Al-’Owhali, in which he re-iterated his
“intention to kill Americans.” (Id. at
¶ 12tttt.) C. The Violent Attacks 1. Somalia Under the leadership of Defendants Atef, Fazul Abdullah Mohamed
(“F.A.Mohamed”), Odeh, and the now deceased, Abu Ubaidah, al
Qaeda allegedly provided military training and assistance in its camps to
Somali tribes opposed to the U.N. peacekeeping mission in that country. (See
id. at ¶¶ 12p-12q.) On October 3 and 4,
1993, the Indictment alleges, those persons they trained “participated
in an attack on United States military personnel serving in Somalia as part of
Operation Restore Hope, which attack resulted in the killing of 18 United
States Army personnel….” (Id. at ¶ 12y.) 2. The East African Bombings The Indictment includes roughly parallel allegations with respect
to the bombings in Kenya [FN11] and Tanzania. During the spring and early
summer of 1998, al Qaeda members and other co-conspirators began to congregate
in both Nairobi and Dar es Salaam. Defendant Fahid Mohammed Ally Msalam
(“Msalam”) and an unindicted co-conspirator that the
Government identifies as “Azzam,” (id. at ¶ 12vvvv)
congregated in Nairobi; Defendants K.K. Mohamed and Mustafa Mohamed Fadhil [*231]
(“Fadhil”) met in Dar es Salaam. One of the first tasks for
each group was to purchase a truck and make necessary alterations to prepare
the truck for use with a bomb. Defendant Sheikh Ahmed Salim Swedan
(“Swedan”) is charged with purchasing both trucks, assisted
in Nairobi by Msalam (see id. at ¶ 12yyyy) and
assisted in Dar es Salaam by Defendant Ahmed Khalfan Ghailani
(“Ghailani”) (see id. at
¶¶ 12aaaaa-12bbbbb). FN11. The Nairobi
bombing, however, is alleged to have been planned for a longer period of time.
Towards the end of 1993, the Indictment alleges, al Qaeda established a Kenyan
cell of operations. “[V]arious members,” including Defendants
Al Fawwaz, Odeh, and El Hage, moved to Narirobi and established businesses and
residences. (See id. at ¶¶ 12r-12x.) One
such business, a fishing business, allegedly established by Odeh in 1994, was
used “to support al Qaeda members in Kenya.” (Id. at
¶ 12t.) Beginning as early as late 1993 and early 1994,
various al Qaeda members in Nairobi discussed, and planned, an attack on the
United States Embassy in that city. (See id. at
¶¶ 12ii-12oo.) El Hage is also accused of traveling
to the Sudan in June and July of 1997 to obtain money to support the operations
of al Qaeda’s Kenyan cell (see id. at
¶¶ 12 vvv-12www.) Towards the end of 1996 and early
part of 1997, El Hage allegedly traveled from Kenya to Pakistan, allegedly to
meet with Al Qaeda leaders, including Defendant Atef. (See id. at
¶¶ 12kkk-12mmm.) During the first week in August, final preparations were made.
Defendants Al-’Owhali and F.A. Mohammed, along with Azzam, made those
preparations at a villa in Nairobi (see id. at
¶ 12nnnnn); Defendants Fadhil, K.K. Mohamed, and Msalam,
along with an unindicted co-conspirator identified only as
“CS-2” made preparations in Dar es Salaam. (See id. at
¶ 12kkkkk.) On the night before the bombings, pursuant to the
advice of an unidentified “al Qaeda member” (id. at
¶ 12lllll), Defendants Odeh, Msalam, and Ghailani left
Nairobi under assumed names and traveled to Karachi, Pakistan. (See id. at
¶¶ 12vvvvv-12wwwww.) Early the next morning, claims
of responsibility were sent by fax to London, England for further distribution
by unidentified co-conspirators. (See id. at
¶ 12xxxxx.) Finally, on August 7, 1998, separated in time by only ten minutes,
the two bombs were detonated. In Nairobi, they were allegedly detonated by
Azzam and F.A. Mohammed, accompanied by Al-’Owhali (see id. at
¶¶ 12yyyyy, 12aaaaaa-12bbbbbb); in Dar es Salaam,
they were detonated by an unindicted co-conspirator, identified by the
Government as “Ahmed the German,” (see id. at
¶ 12dddddd). In the immediate aftermath of the bombing,
Defendant F.A. Mohammed allegedly cleaned out the villa in Nairobi where
preparations had been made and traveled to the Comoros Islands. (See id. at
¶ 12gggggg.) Also in the aftermath of the bombing, Defendant El
Hage—who had testified about al Qaeda before a federal grand jury upon
his return to the United States from Kenya approximately one year earlier (see id. at
¶ 12dddd)—was subpoenaed to appear before a federal
grand jury investigating the bombings. On both occasions, El Hage was also
interviewed by special agents of the FBI. The Indictment accuses Mr. El Hage of
making a wide variety of false statements both to the FBI agents (see id. at
¶ 12cccc) and to the grand jury, in both 1997 (see id. at
¶ 12dddd) and 1998 (see id. at
¶ 12eeee). D. Procedural History On September 16, 1998, following his testimony before the Grand
Jury, Defendant El Hage was arrested by federal authorities. He was
incarcerated pursuant to certain special conditions of confinement, which
federal regulations authorize for particularly dangerous detainees. See 28
C.F.R. § 501.3(a) (1999). In this case, those conditions have
included periods of solitary confinement, [FN12] as well as severe restrictions
on the Defendants’ access to visitors and to the telephone. Defendants
Odeh and Al-’Owhali were next brought into federal custody, and first
appeared before the Court on October 8, 1998. Salim first appeared on December
21, 1998, after having been arrested in Germany on September 6, 1998. Ali
Mohamed first appeared on May 27, 1999 and K.K. Mohamed was arraigned before
this Court on October 8, 1999. Since being brought into [*232] federal
custody, each of those Defendants has also been incarcerated pursuant to the
particularly restrictive conditions described above. FN12. In response to
the complaints raised by Defendant El Hage in the course of his most recent
application for bail, the Government permitted Mr. El Hage to be housed with a
roommate, co-defendant Salim. (See Transcript of Proceedings, Jan. 10, 2000, at
11.) The Court has also been informed that the Government consented to a
request by Defendant Al-’Owhali to share a cell with co-Defendant K.K.
Mohamed. (See Letter from Fitzgerald to Joy of Feb. 2, 2000.) Additional accommodations
with respect to recreational opportunities for the Defendants appear to have
been made in recognition of the protracted nature of pre-trial litigation. (See
Letter from Fitzgerald to the Court of Jan. 21, 2000.) The process of preparing for a trial in this case has been
unusually protracted. The complexity of the charges, the voluminous discovery
that needs to be exchanged, the location of many relevant documents and
witnesses in various countries around the world, special procedures for
handling classified material, the need to translate literally thousands of
documents, and the potential availability of capital punishment for some of the
Defendants have combined to require an extraordinary amount of work on the part
of all parties involved. Despite everyone’s best efforts, it is
anticipated at this time that the earliest possible date that this case could
be ready for trial is September 5, 2000—almost two years after the
first Defendant was brought into custody and incarcerated under restricted
conditions. [FN13] Trial of the guilt phase of this case, excluding jury
selection and deliberation, is expected to last at least six months. (See
Transcript of Proceedings, September 28, 1999, at 13.) FN13. On December 1,
1999, El Hage filed an application for bail (his third), arguing that the
duration of his highly restricted, pre-trial confinement constituted a
violation of due process. That application was denied, on the basis of
voluminous submissions by the parties and extensive oral argument. (See
Transcript of Proceedings, Jan. 10, 2000, at 40.) The Government’s
submission, which included a 71-page affirmation with 39 attached exhibits,
(see Affirmation of Patrick J. Fitzgerald of December 30, 1999) provided an
extensive discussion of the Government’s evidence against Mr. El Hage,
and argument as to what that evidence demonstrated about Mr. El Hage’s
role in the offenses charged in the Indictment. The Court of Appeals heard
argument on the appeal of this Court’s denial of bail on March 13,
2000. Four of the Defendants—El Hage, Salim, Odeh, and K.K.
Mohamed—now move for an order requiring the Government to file a bill
of particulars. Together, the Defendants have requested more than 150 specific
items of information that they wish to be included in that bill. The Defendants
contend that the filing of a bill of particulars responsive to those requests
is necessary to permit them to prepare a defense and to prevent prejudicial
surprise at trial. The Government, on the other hand, in addition to
challenging the appropriateness of a bill of particulars that includes the
types of information requested by the Defendants, contends that it need not
file a bill of particulars because the extensive detail included in the Indictment,
the voluminous discovery it has provided to date, [FN14] and the additional
disclosures provided in its response to Mr. El Hage’s bail application
more than adequately apprise the Defendants of the charges that they must be
prepared to answer. FN14. “To
date, the Government has provided hundreds of thousands of pages of documents,
dozens of audio and video tapes, transcripts and translations of these
materials, hundreds of crime scene and other photographs, several dozen
laboratory reports reflecting forensic tests of thousands of items and numerous
other FBI Reports.” Brief for the United States at 21-22, United
States v. El Hage, No. 00-1025 (2d Cir. Feb. 15, 2000)
(opposing application for bail). II. DISCUSSION A. Legal Standard General principles as to when the court should order the
Government to file a bill of particulars are familiar and well settled. Federal
Rule of Criminal Procedure 7(f) provides that: The court may direct
the filing of a bill of particulars. A motion for a bill of particulars may be
made before arraignment or within ten days after arraignment or at such later
time as the court may permit. A bill of particulars may be amended at any time
subject to such conditions as justice requires. Id. Prior to 1966, the federal rules only
permitted the court to direct the filing of a bill of particulars “for
cause.” That condition was eliminated “to encourage a more
liberal attitude by the courts toward bills of particulars without taking away
the discretion which courts must have in dealing with such motions in
individual cases.” [*233] Fed.R.Crim.P. 7(f)
advisory committee’s note; see also 1 Charles Alan Wright, Federal
Practice and Procedure § 129, at 646-48 (3d ed.1999)
(discussing historical development of standard for ordering the filing of a
bill of particulars). “Even under the amended rule a bill of particulars is not
a matter of right.” 1 Charles Alan Wright, Federal Practice and
Procedure § 129, at 648 (3d ed.1999) (citations omitted).
Whether to order the filing of a bill of particulars is a decision that rests
within the sound discretion of the district court. See United States v.
Walsh, 194 F.3d 37, 47 (2d Cir.1999) (citing United States v. Barnes, 158 F.3d
662, 665-66 (2d Cir.1998)). In exercising that discretion, the court must
examine the totality of the information available to the
defendant—through the indictment, affirmations, and general pre-trial
discovery—and determine whether, in light of the charges that the
defendant is required to answer, the filing of a bill of particulars is
warranted. Even the most cursory review of the many reported cases in which
courts have examined a defendant’s request for a bill of particulars
reveals several general principles that are often repeated. For example, almost
every court that considers the issue begins by noting that “[t]he
function of a bill of particulars is to provide [a] defendant with information
about the details of the charge against him if this is necessary to the
preparation of his defense, and to avoid prejudicial surprise at the
trial.” United States v. Torres, 901 F.2d 205, 234
(2d Cir.1990) (quoting 1 Charles A. Wright, Federal Practice and Procedure
§ 129, at 434-35 (2d ed.1982) and citing United States v.
Bortnovsky, 820 F.2d 572, 574 (2d Cir.1987) (per curiam)). [FN15] It is
almost as frequently stated that “[a] bill of particulars should be
required only where the charges of the indictment are so general that they do
not advise the defendant of the specific acts of which he is accused.”
Id. (quoting United States v. Feola, 651 F.Supp. 1068,
1132 (S.D.N.Y.1987), aff’d, 875 F.2d 857 (2d Cir.1989)). [FN16] Many
courts have observed that “[a]cquisition of evidentiary detail is not
the function of the bill of particulars,” id., and that it is not the
bill’s function “to allow defendants a preview of the
evidence or the theory of the government’s case,” United
States v. Taylor, 707 F.Supp. 696, 699 (S.D.N.Y.1989) (quoting United
States v. Guerrerio, 670 F.Supp. 1215, 1225 (S.D.N.Y.1987)
(internal quotation marks omitted)). [FN17] Finally, it is typically noted that
“in deciding whether a bill of particulars [*234] is needed,
the court must determine whether the information sought has been provided
elsewhere, such as in other items provided by discovery, responses made to
requests for particulars, prior proceedings, and the indictment
itself.” Strawberry, 892 F.Supp. at 526 (citing Feola, 651
F.Supp. at 1133). [FN18] FN15. See, e.g., United
States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir.1988) (citation
omitted); United States v. Rodriguez, No. 99 Cr. 367(DLC),
1999 WL 820558, at *1 (S.D.N.Y. Oct. 13, 1999) (citations omitted); United
States v. Mittal, No. 98 Cr. 1302(JGK), 1999 WL 461293, at *9 (S.D.N.Y.
July 7, 1999) (citations omitted); United States v. Gallo, No. 98
Cr. 338(JGK), 1999 WL 9848, at *5 (S.D.N.Y. Jan. 11, 1999) (citations omitted);
United States v. Mango, No. 96-CR-327, 1997 WL 222367, at *8
(N.D.N.Y. May 1, 1997) (citations omitted); United States v. Muyet, 945
F.Supp. 586, 599 (S.D.N.Y.1996); United States v. Song, No. 95 Cr. 129(KMW),
1995 WL 736872, at *6 (citations omitted); United States v. Cruz, No. S1 94 Cr.
313(CSH), 1995 WL 617220, at *1 (S.D.N.Y. Oct. 20, 1995); United States v.
Gambino, No. 94 Cr. 687(HB), 1995 WL 453318, at *6 (S.D.N.Y. Aug. 1,
1995); cf. United States v. Salazar, 485 F.2d 1272, 1277
(2d Cir.1973) (“A bill of particulars is normally ordered by a trial
judge … to supplement an indictment cast in general terms.”);
Nachamie, 2000 WL 37993, at *3 (“A bill of particulars
permits a defendant ‘to prepare for trial, to prevent surprise, and to
interpose a plea of double jeopardy should he be prosecuted a second time for
the same offense.’ ”) (quoting Bortnovsky, 820 F.2d
at 574); FN16. See, e.g., Walsh, 194 F.3d
at 46; Mittal, 1999 WL 461293, at *9; Gallo, 1999 WL
9848, at *5; Muyet, 945 F.Supp. at 599; Cruz, 1995 WL
617220, at *1; Gambino, 1995 WL 453318, at *6. FN17. See, e.g., Barnes, 158 F.3d
at 665 (“[A] bill of particulars ‘is not intended, as such,
as a means of learning the government’s evidence and
theories….”) (quoting 1 Charles Alan Wright, Federal Practice
and Procedure § 129 (1982)) (internal quotation marks
omitted); Davidoff, 845 F.2d at 1153 (“The prosecution need not
particularize all of its evidence.”) (citing United States v. Gottlieb, 493 F.2d
987, 994 (2d Cir.1974)); Nachamie, 2000 WL 37993, at *3
(“The proper scope and function of a bill of particulars is not to
obtain disclosure of evidence or witnesses to be offered by the Government at
trial….”) (quoting United States v. Strawberry, 892
F.Supp. 519, 526 (S.D.N.Y.1995) (citing Salazar, 485 F.2d at 1278)); Rodriguez, 1999 WL
820558, at *1 (citations omitted); United States v. Sainato, 33
F.Supp.2d 155, 161 (E.D.N.Y.1998); Mango, 1997 WL 222367, at
*8 (citing United States v. Walker, 922 F.Supp. 732, 738 (N.D.N.Y.1996) (citing
United States v. Biaggi, 675 F.Supp. 790, 809 (S.D.N.Y.1987)));
Muyet, 945 F.Supp. at 599 (citing United States v. LaMorte, 744
F.Supp. 573, 577 (S.D.N.Y.1990); Song, 1995 WL 736872, at
*6 (citations omitted); United States v. Jimenez, 824 F.Supp. 351, 363
(S.D.N.Y.1993)); United States v. DeSalvo, 797 F.Supp. 159,
174-75 (E.D.N.Y.1992) (“Defendant clearly seeks to discover not just
the contours of the case … defendant seeks in detail the sort of
arguments that the government will make to bolster its arguments.”); United
States v. Facciolo, 753 F.Supp. 449, 451 (S.D.N.Y.1990)
(“The government will not be compelled through a bill of particulars
to disclose the manner in which it will prove the charges or preview its
evidence or legal theory.”). FN18. See, e.g., Walsh, 194 F.3d
at 47 (citing Torres, 901 F.2d at 234; United States v. Panza, 750 F.2d
1141, 1148 (2d Cir.1984)); Barnes, 158 F.3d at 665 (citing Bortnovsky, 820 F.2d
at 574); Nachamie, 2000 WL 37993, at *3 (citations omitted); Rodriguez, 1999 WL
820558, at *1 (citation omitted); Mittal, 1999 WL 461293, at
*9 (citations omitted); Gallo, 1999 WL 9848, at *5 (citations
omitted); Muyet, 945 F.Supp. at 599 (citation omitted); Song, 1995 WL
736872, at *6 (citations omitted); Cruz, 1995 WL 617220, at
*1 (citations omitted). Once one focuses, however, on the details of a particular case, it
becomes apparent that the foregoing, oft-repeated generalities provide little guidance.
The line that distinguishes one defendant’s request to be apprised of
necessary specifics about the charges against him from another’s
request for evidentiary detail is one that is quite difficult to draw. It is no
solution to rely solely on the quantity of information disclosed by the
government; sometimes, the large volume of material disclosed is precisely what
necessitates a bill of particulars. See Bortnovsky, 820 F.2d
at 575 (“providing mountains of documents to defense counsel”
when the indictment contained general allegations of fraud
“impermissibly shifted” the burden of proof to the
defendants, necessitating a bill of particulars); Nachamie, 2000 WL 37993, at
*4 (applying Bortnovsky and ordering filing of bill of particulars
when government had produced “200,000 pieces of paper in hundreds of
boxes and files”). It is not surprising, therefore, that more than one
court has observed that “the precedents furnish little help in
disposing of requests for bills of particulars in criminal cases.” United
States v. Metropolitan Leather & Findings Ass’n, 82
F.Supp. 449, 454 (S.D.N.Y.1949); see also Nachamie, 2000 WL 37993, at *5
(noting that “[a] review of the case law in this district reveals no
clear distinction among circumstances in which courts grant a request
…” in a particular circumstance) (citing United States v.
Killeen, No. 98 Cr. 143, 1998 WL 760237, at *5 (S.D.N.Y. Oct. 29, 1998));
1 Charles Alan Wright, Federal Practice and Procedure § 131,
at 675-76 (3d ed.1999) (collecting cases containing similar comments). Moreover, to whatever limited degree prior decisions are helpful
as a general matter when resolving demands for a bill of particulars, they are
particularly unilluminating in this case. The geographical scope of the
conspiracies charged in the Indictment is unusually vast. The Indictment
alleges overt acts in furtherance of those conspiracies that occurred in
Afghanistan, Pakistan, the Sudan, Somalia, Kenya, Tanzania, Malaysia, the
Philippines, Yemen, the United Kingdom, Canada, California, Florida, Texas, and
New York. (See generally Indictment at ¶ 12.) The breadth and
duration of the criminal conduct with which the alleged conspirators are accused
is similarly widespread. [*235] The Indictment
alleges activity, occurring over a period of nearly ten years, that ranges from
detonating explosives, to training Somali rebels, to transporting weapons, to
establishing businesses, to lecturing on Islamic law, to writing letters, and
to traveling, as overt acts in furtherance of the charged conspiracies. (See
id.) We are hesitant, therefore, to place any significant weight on the
conclusions reached in earlier cases in which courts were presented with an
indictment alleging a more specific type of criminal conduct, occurring over a
shorter period of time, in a more circumscribed geographical area. Although we
express no view at this time as to whether the Indictment comports with the
requirements of due process, [FN19] we recognize that it does impose a
seemingly unprecedented and unique burden on the Defendants and their counsel
in trying to answer the charges that have been made against them. FN19. That question,
raised by Defendant Al-’Owhali’s motion to dismiss the
Indictment, will be addressed in a separate, forthcoming opinion. We believe that a bill of particulars is necessary in this case to
permit the Defendants to prepare a defense and to prevent prejudicial surprise
at trial. See Wong Tai v. United States, 273 U.S. 77, 82, 47
S.Ct. 300, 71 L.Ed. 545 (1927). Specifically, for the reasons set forth below,
we conclude that several of the allegations contained in the “Overt
Acts” section of the Indictment are cast in terms that are too
general, in the context of this particular case, to permit the Defendants to
conduct a meaningfully directed investigation of the relevant facts and
circumstances and be prepared to respond to the charges. The restrictive
conditions of pre-trial confinement— to which all of the Defendants
have now been subjected for at least several months (and one has been subjected
for almost two years)—while in our view lawful and necessary, are also
a concern. To the extent that the filing of a bill of particulars will expedite
Defendants’ preparation for trial and permit a more efficient and
expeditious resolution of this matter, the Court, in the exercise of its
discretion, orders that such a bill be filed, but only to the extent set forth
herein. A. Requests Pertaining to Conspiracy Charges By far, the bulk of the Defendants’ requests for
particulars involve the six conspiracies charged in the Indictment. Many of the
conspiracy-related requests seek particulars with respect to the Indictment’s
allegations of overt acts in furtherance of the charged conspiracies, many of
which are described in general terms. Another large group of requests seek
identification of co- conspirators. [FN20] A third category seeks detailed
information about the formation of the conspiracies, when and how each
defendant joined the conspiracies, and the role played by each Defendant in the
various conspiracies. FN20. To some extent
these two categories overlap; that is, the Defendants seek particulars with respect
to general allegations and identification of the co-conspirators named therein.
Where this is the case, we instruct the Government to identify co-conspirators
in accordance with the instructions infra at Part IIA(2), but to provide any
other requested details in accordance with Part IIA(1). 1. Requests to Provide Specific Details about Allegations of Overt
Acts in Furtherance of the Charged Conspiracies The majority of the Defendants’ conspiracy-related
requests for particulars involve allegations contained in the
Indictment’s “Overt Acts” section. (See Declaration
of Joshua L. Dratel, Esq. (the “Dratel Declaration”) at
¶¶ 7(w)-(mmmm); Letter from Goltzer to Fitzgerald of
November 17, 1999, attached as Ex. A to Salim’s Notice of Motion (the
“Goltzer Letter”) at ¶¶ 13-31.
[FN21]) The Court has carefully reviewed [*236] each of
those allegations and has considered whether the requested particulars are
necessary. With respect to some of the allegations—those which are
described in general terms that refer to so broad a class of activity that they
would require an exceedingly extensive investigation by defense
counsel—we conclude that a bill of particulars is required. FN21. The Goltzer Letter actually
contains two separately enumerated lists of paragraphs. For the purpose of this
discussion, all of the references made herein to paragraph numbers refer to the
numbered list of paragraphs that appears under the heading “Bill of
Particulars,” pp. 10-13. We find some guidance in the decisions rendered in Bortnovsky and Nachamie. In Bortnovsky, the
defendants were charged with submitting fraudulent insurance claims. See
Bortnovsky, 820 F.2d at 573. The indictment alleged, generally, that
“[t]he defendants would and did submit false claims
…” for “burglary losses” and “fire
damage,” but never identified which of the many claims filed by the
defendants with their insurance carrier were allegedly fraudulent. Id. at 574. The
government provided the defendants with over 4,000 documents during discovery,
but never identified which of those documents would be the basis for its claims
at trial. See id. Finding that the combination of general
allegations with extensive discovery, “in effect” shifted the
burden of proof to the defendants, the Court of Appeals reversed the conviction
on the ground that the denial of the defendant’s request that the
court order the filing of a bill of particulars was an abuse of discretion. See
id. at 574-75. Similarly, in Nachamie, “[t]he
Government … produced over 200,000 pieces of paper in hundreds of
boxes and files, relating to 2,000 Medicare claims,” but never
“informed the defendants which of the[ ] claims were false and in what
way they were false.” Nachamie, 2000 WL 37993, at *4. Noting the
similarity to the situation in Bortnovsky, see id., the
court ordered the government to identify which of the Medicare claims were
fraudulent, but “only with regard to those claims that the Government
intends to prove at trial.” Id. at *7. In this case—in which the charged conspiracies involve a
wide range of conduct, occurring over a long period of time, in various
countries around the world—the Indictment alleges that some of the
Defendants participated in the charged conspiracies by committing overt acts in
furtherance thereof which are described only in terms as general as engaging in
“travel” and conducting “business.” We
believe that because those terms refer to such broad categories of conduct,
those allegations provide too little information to the Defendants and their
counsel to permit them reasonably to focus their trial preparations, especially
in light of the voluminous amount of material that has been produced in
discovery to date. We therefore direct the Government to file a bill of
particulars that is responsive to the following requests submitted by defense
counsel: (1) that contained in the Dratel Declaration at
¶ 7(nnnnn) (seeking particulars as to all “travel by
Mr. El Hage [that] is alleged to have been made in furtherance of the
conspiracies charged against him in the Indictment”) and (2) that
contained in the Dratel Declaration at ¶ 7(ooooo) (seeking
particulars as to which “businesses and/or organizations by which Mr.
El Hage was employed [that] operated as ‘fronts’ for al
Qaeda….”) [FN22] FN22. We do not direct
the Government to respond to El Hage’s similar request to identify
“what activities performed by Mr. El Hage on behalf of those business
and/or organizations … were performed in furtherance of the
conspiracies charged against him” (id. at
¶ 7(ppppp)) as well as various other requests made by El Hage
to specify the roles played by various members of the conspiracy (see id. at
¶¶ 7(qqqqq)-(vvvvv)). As is more fully set forth
below, see infra Part IIA(3), the jury is entitled to draw inferences about
whether and how particular activities furthered a conspiracy without direct
proof from the Government. We do not believe it is appropriate therefore to
require the Government to articulate in a bill of particulars, the way in which
certain adequately identified activities furthered a conspiracy. The Government argues, in opposition to the Defendants’
motions, that, at least in some instances, its information might not be
sufficiently specific to permit it to file a bill that is responsive to the
Defendants’ [*237] requests. For
example, the Government suggested during oral argument that, hypothetically, it
might possess information that a particular defendant traveled to a particular
location at some point during 1997. (See Transcript of Proceedings, Feb. 29,
2000, at 77.) If it is the case that the defendant’s passport reveals
3 trips made to that location, one each in March, June, and October of 1997,
the Government contended, it would be impossible for it to specify the
particular trip to which the Indictment refers. (Id.) We recognize that it
would improperly limit the Government’s proof if, under the
circumstances posed in that hypothetical, it were forced to identify a specific
trip in a bill of particulars. However, we do not believe that because the
Government might be unable to provide a complete response to a
Defendant’s request for information, it should therefore not provide
any information at all. If, in good faith, the Government determines that it
cannot provide the particulars we have ordered, it may so indicate in its bill
of particulars and provide as much detail as it can. Following the hypothetical
posed in oral argument, therefore, we believe that it would be an acceptable
response to this Court’s order for the Government to indicate that it
would offer proof at trial that “one or more of the three trips taken
by that defendant during March, June, and October of 1997” was a trip
made in furtherance of the charged conspiracies. The Government also argues that it should not be required to
respond to the Defendants’ requests for particulars because it has
included a list of 144 overt acts in the Indictment. However, the Government is
plainly not limited in its proof of overt acts at trial to those that are set
forth in the Indictment. See United States v. Bryan, 122 F.3d
90, 93 (2d Cir.1997), aff’d on another ground sub. nom., Bryan v.
United States, 524 U.S. 184, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998); United
States v. Armone, 363 F.2d 385, 400 (2d Cir.1966). The Defendants and
their counsel cannot, therefore, limit their trial preparations to the set of
144 overt acts set forth in the Indictment. Moreover, even if the Government were to limit its proof to the
144 overt acts alleged in the Indictment, many of those allegations are charged
in such general terms that the Defendants’ trial preparation might
nevertheless be unduly burdened, creating a risk of prejudicial surprise at
trial. Although the Government need not have included so many overt act
allegations in the Indictment, having chosen to do so, it cannot be permitted
to allege overt acts in such general terms as to require seemingly unlimited
research and investigation by the Defendants in an attempt to answer those
charges. We note, specifically, the following allegations: a. The overt act alleged in the Indictment at
¶ 12d, which charges that: At various times from at least as early as 1989 until the date of
the filing of this Indictment, the defendants USAMA BIN LADEN and MAMDOUH
MAHMUD SALIM, and others known and unknown to the Grand Jury, engaged in
financial and business transactions on behalf of al Qaeda, including but not
limited to: purchasing land for training camps; purchasing warehouses for
storage of items, including explosives; purchasing communications equipment;
transferring funds between corporate accounts; and transporting currency and
weapons to members of al Qaeda and its associated terrorist organizations in
various countries throughout the world. To carry out some of these financial
transactions, the defendant MAMDOUH MAHMUD SALIM traveled to various places on
behalf of al Qaeda and its affiliated groups, including, among other places to
Sudan, Afghanistan, Malaysia and the Philippines. For a Defendant to respond to this allegation, it would be
necessary to examine any activity in which Mr. Salim was engaged from 1989
until the date the Indictment was filed (June 16, 1999), which might be the
basis for an accusation that [*238] he
“traveled” or engaged in a “financial” or
“business transaction[ ] on behalf of al Qaeda.” It seems to
the Court that such an investigation would be unduly burdensome to the defense.
Although the Indictment specifies some of the “financial and business
transactions” involved and lists four places to which Salim is alleged
to have traveled, the inclusion of those particulars does not limit the scope
of defense counsel’s inquiries because neither list purports to be
exclusive. By contrast, many of the other overt act allegations involving
travel provide sufficient detail to permit defense counsel reasonably to focus
their investigation. For example, the overt act alleged in the Indictment at
¶ 12xx reads, in full, as follows: “In or about
December 1995, the defendant WADIH EL HAGE visited the defendant ALI MOHAMED in
Santa Clara, California.” Unlike the allegation in
¶ 12d, the one set forth in ¶ 12xx
specifies the month during which the travel occurred, the destination, and the
specific purpose for that travel. The Defendants could reasonably focus their
preparations with respect to this allegation to a narrow class of
conduct—travel by Mr. El Hage to a particular city in California in a
particular month to visit a particular individual. We therefore deny Mr. El
Hage’s request for the Government to include in its bill a
specification as to “the date(s) and exact location(s) at which Mr. El-Hage
visited Ali Mohamed in Santa Clara, California.” (Dratel Declaration
at ¶ 7(ww).) For similar reasons, we deny the requests listed
in the Dratel Declaration at ¶ 7(xx) (seeking particulars
about a “December 1995” visit by El Hage to Al Fawwaz in
London) and 7(bbb) (seeking particulars about a “late January
1997” trip by El Hage to Pakistan to visit “leaders of al
Qaeda”). However, because the allegation contained in
¶ 12d contains no similar limitation, we order the Government
to respond in its bill of particulars to the requests made by defense counsel
with respect to that allegation. (See Goltzer Letter at ¶ 15
(asking the Government to “set forth the exact dates, times and places
to and from which Mr. Salim allegedly traveled on behalf of al Qaeda, identify
the affiliated groups on whose behalf he traveled, and specify the exact nature
of the financial or business transaction and the identity of all
participants”).). b. The overt act alleged in the Indictment at
¶ 12f, which charges that: Following al
Qaeda’s move to the Sudan in or about 1991, the defendant USAMA BIN
LADEN established a headquarters in the Riyadh section of Khartoum. USAMA BIN
LADEN also established a series of businesses in the Sudan, including a holding
company known as “Wadi al Aqiq,” a construction business
known as “Al Hijra,” an agricultural company known as
“al themar al Mubaraka,” an investment company known as
“Ladin International,” an investment company known as
“Taba Investments,” a leather company known as the
“Khartoum Tannery,” and a transportation company known as
“Qudarat Transport Company.” These companies were operated to
provide income to support al Qaeda and to provide cover for the procurement of
explosives, weapons and chemicals and for the travel of al Qaeda operatives.
The defendants MAMDOUH MAHMUD SALIM and WADIH EL HAGE worked for various of the
Bin Laden companies. The defendant WADIH EL HAGE also served as Bin
Laden’s personal secretary; the overt act alleged at
¶ 12r, which charges that: In or about 1993,
various members of al Qaeda, including the defendant KHALED AL FAWWAZ, began to
establish businesses and residences in Kenya, particularly in Nairobi; and the overt act alleged at ¶ 12u, which
charges that: In or about 1994, the
defendant WADIH EL HAGE moved from Khartoum in the Sudan to Nairobi, Kenya and
set up businesses and other organizations in Kenya. While in Kenya, the
defendant WADIH EL HAGE met repeatedly with [*239] one of the
military commanders of al Qaeda, “Abu Ubaidah al Banshiri." To respond to the allegation contained in ¶ 12f,
a Defendant would need to investigate, and prepare to respond to, any evidence
about Mr. El Hage’s or Mr. Salim’s associations with
businesses in the Sudan since 1991 that might give rise to an accusation that
the business was a “Bin Laden” company and that El
Hage’s or Salim’s work furthered the interests of al Qaeda.
As with the allegation in ¶ 12d, the inclusion of a list of
businesses in ¶ 12f does not permit defense counsel to focus
their inquiries since that list does not purport to be exclusive. Similarly,
although the allegations contained in ¶¶ 12r and 12u
are limited to entities established in 1993 and 1994, respectively, we believe
that the terms “businesses and residences” [FN23] and
“businesses and other organizations” are so general that it
is necessary for the Government to limit the scope of those allegations by
providing particulars. FN23. It is worth
noting, as well, that although the allegation contained in ¶ 12r
specifically mentions Al Fawwaz by name, it would not be limited to business
and residences established by that particular Defendant, since the allegation
also refers to such entities established by “various members of al
Qaeda,” including, presumably some of the other Defendants named in
the Indictment. There are many overt act allegations in the Indictment other than
those contained in ¶¶ 12f, 12r, and 12u, as to which
the Defendants have requested particulars, which do not specify precise dates
or locations and allege generally that a certain type of activity occurred. For
example, the very first overt act alleged—the provision of
“training camps and guesthouses” to al Qaeda members and
affiliated groups—is alleged to have occurred “[a]t various
times … in various areas.” (See Indictment at
¶ 12a.) Nevertheless, we believe that the term
“provided training camps and guesthouses” denotes a sufficiently
precise type of conduct that the Defendants would be able sufficiently to focus
their responsive preparations. We therefore deny the Defendants’
requests with respect to that allegation. (See Dratel Declaration at
¶ 7(w).) Similarly, we have reviewed many of the other
requests made by the Defendants that involve open-ended and under-defined overt
act allegations and deny those requests on the ground that the type of conduct
involved is sufficiently concrete and particular as to permit a reasonably
focused investigation. [FN24] FN24. See Dratel
Declaration at ¶ 7(x)-(z), (ff)-(jj), (oo)-(ss), (vv),
(zz)-(aaa), (ddd)-(eee), (ppp)-(ttt), (bbbb)-(eeee), and (hhhh); and Goltzer
Letter at ¶¶ 13, 17-28 (seeking particulars with
respect to allegations of the following overt acts: those contained in the
Indictment at ¶¶ 12(b) (recruiting United States
citizens), 12h (issuing fatwahs), 12p (receiving reports about means of
attacking U.S. troops in Somalia), 12q (providing military training and
assistance to Somali tribes), 12y (attacking U.S. military personnel in
Somalia), 12z (transporting weapons), 12aa (lecturing on Islamic law), 12bb
(attempting to obtain nuclear weapons), 12cc (attempting to obtain chemical
weapons), 12ff (applying for translation work at the FBI), 12tt (reporting to
co-conspirators about Sheik Rahman’s trial), 12aaa (providing al Qaeda
members with communications equipment), 12iii (forwarding a Declaration of
Jihad to England), 12mmm (transporting a particular amount of cash to Kenya),
12www (same), 12yyy (hiding files), 12eeeee (discussing formation of a united
front of Islamic extremist groups), 12hhhhh (obtaining a false passport),
12nnnnn (meeting at a particular villa in Nairobi at a particular time),
12ppppp (meeting in a particular hotel in Nairobi on a particular date),
12rrrrr (reconnoitering the American Embassy in Nairobi on a particular date),
and 12xxxxx (faxing a claim of responsibility for the East African bombings)). However, because the three allegations identified above (those set
forth in the Indictment at ¶¶ 12f, 12r, and 12u)
involve such broadly-defined activities as setting up businesses, residences,
and other organizations, we order the Government to include in the bill of
particulars a response to the requests made by counsel for Mr. Salim (see
Goltzer Letter at ¶ 16 (requesting that, with respect to
¶ 12f, the Government “identify the entire series of
businesses, when they were established and identify the specific business or
business[ [*240] es][sic] for which Mr. Salim allegedly worked,
the nature of the work he did, and the date or dates of the work for each
company”)) and by counsel for Mr. El Hage (see Dratel Declaration at
¶ 7(bb) (requesting that the Government “identify
any companies not named” in ¶ 12f)), 7(kk)
(requesting that the Government “identify the ‘various
members of al Qaeda,’ as well as the ‘businesses and
residences’ “ established in Kenya in 1993), and 7(11)
(requesting that “the Government identify the ‘various
businesses and other organizations’ in Kenya ‘set
up’ by Mr. El Hage” in 1994) with respect to the allegations
contained in ¶¶ 12f, 12r, and 12u. [FN25] FN25. The Government
is only directed to respond, however, to the particular request by El Hage
contained in ¶ 7(bb) of the Dratel Declaration. El Hage has
also requested that the Government identify how he worked as a personal
secretary for Bin Laden. (See Dratel Declaration at ¶ 7(ee).)
The Government is not directed to include a response to that request in its
bill of particulars, because it is apparent to the Court that the requested information
is provided in the Government’s response to Mr. El Hage’s
application for bail. (See Affirmation of Patrick J. Fitzgerald of December 30,
1999, at ¶ 9.) c. The overt act alleged in the Indictment at
¶ 12uuu: At various times during the course of the conspiracy, the
defendants ALI MOHAMED and WADIH EL HAGE engaged in coded correspondence with
other members and associates of the al Qaeda organization. It is in the nature of “coded correspondence”
that the documents are not self-identifying. Unless the Defendants know the
date or subject matter of the correspondence, or are provided with some other
means of identification, it would be impossible for them to determine the
documents to which the Indictment refers. We believe that, without some
additional identifying information, the bare allegation that two defendants
engaged in “coded correspondence” requires supplementation
with a bill of particulars. By contrast, many other allegations in the Indictment refer to
coded correspondence, but specify the date of the correspondence. It is the
Court’s view that the inclusion of a date permits the Defendants to
make a reasonable estimate as to the document to which the Indictment refers.
We therefore deny the requests made for particulars with respect to those
allegations. (See Dratel Declaration at ¶¶ 7(fff),
7(ggg), 7(iii), 7(kkk), and 7(lll).) Some allegations involving coded
correspondence include even more identifying detail. For example, the overt act
alleged in the Indictment at ¶ 12xxx, which reads, in
pertinent part, that: In or about the summer of 1997, the defendant WADIH EL HAGE
possessed in his files at a location in Nairobi, Kenya various coded letters
and documents, including documents referring to “Nawawi,”
… provides defense counsel with several specific details that might
be used to focus their preparations. The request for the Government to identify
the code in that allegation (see Dratel Declaration at
¶ 7(rrr)) is also denied. However, because the allegation contained in the Indictment at
¶ 12uuu contains no identifying information whatsoever and
merely refers generally to “coded correspondence,” we believe
that a bill of particulars is required. We therefore order the Government to
provide some particulars to Mr. El Hage with respect to that allegation. 2. Requests for Identification of Unindicted Co-Conspirators Whether the Government should be required to identify each
unindicted co-conspirator presents a more difficult question. [FN26] In a
recent opinion, Judge Scheindlin [*241]
articulated some of the factors a court must consider when examining this
issue: FN26. “The
Second Circuit has affirmed both the grant and the denial of
…” requests to identify unindicted co-conspirators. Nachamie, 2000 WL
37993, at *5 (citing Torres, 901 F.2d at 233-34 (affirming
denial); Feola, 651 F.Supp. at 1131-34, aff’d, 875
F.2d 857 (2d Cir.1989) (affirming granting)). If there are a large number of co-conspirators and a long-running
conspiracy, a defendant is more likely to be surprised by the identity of other
co-conspirators, whom he may never have met. If the government has failed to
provide adequate notice of the particulars, or if the discovery has been
voluminous, identification of known unindicted co-conspirators will help a
defendant focus his investigation and prepare for trial. On the other hand,
considering the potential danger to the co-conspirators and the risk of
compromising continuing investigations allows a court to balance a
defendant’s need for the information against legitimate law
enforcement concerns. Nachamie, 2000 WL 37993, at *6 & n. 8 (citing United
States v. Turkish, 458 F.Supp. 874, 881 (S.D.N.Y.1978); In
re United States, 834 F.2d 283, 286 (2d Cir.1987)). Each of those concerns
is relevant in this case. Most fundamentally, we recognize that the
investigation into at Qaeda is ongoing and that individuals associated with al
Qaeda are accused of using the most severe types of violence in furtherance of
their goals. We understand, therefore, that the Government has legitimate
concerns that render it hesitant to reveal the names of unindicted
co-conspirators. On the other hand, as noted above, the conspiracies alleged here
were quite long-running (nearly ten years, and allegedly ongoing) and involved
a large number of co-conspirators (at least 20 individuals). Discovery has
been, consequently, extremely voluminous. Moreover, an additional concern
exists in this case stemming from the fact that the Government claims (as is
clear from the case’s caption) that many of the alleged
co-conspirators used several aliases and/or code names to conceal their
identities. When examining documents that refer to individuals using code names
and aliases, it can become quite difficult to determine to whom the Government
claims a particular name refers. We are sympathetic, therefore, with the
magnitude of defense counsel’s burden in trying to decipher the
identities of alleged co- conspirators. A bill of particulars revealing the
names of all persons whom the Government will claim at trial were unindicted
co-conspirators might, therefore, be necessary to prevent prejudicial surprise
at trial. [FN27] FN27. Cf. United
States v. Taylor, 707 F.Supp. 696, 700 (S.D.N.Y.1989) (requiring the
government to provide the names of “all persons whom the government
will claim at trial were co-conspirators” in a bill of particulars)
(citing Feola, 651 F.Supp. at 1132-34); United States v. Strawberry, 892
F.Supp. at 527 (ordering the filing of a bill of particulars disclosing the
names of co-conspirators and the dates that the defendants and co-conspirators
joined and left the conspiracy); United States v. Allocco, 801
F.Supp. 1000, 1003 (E.D.N.Y.1992); United States v. Chovanec, 467
F.Supp. 41, 45 (S.D.N.Y.1979). We conclude that the Government must disclose to the Defendants
the identities, including all aliases and code names, of all unindicted
co-conspirators to whom it will refer at trial, unless it makes a
particularized determination, in good faith, with respect to each
co-conspirator whose identity is withheld, that disclosure of that
person’s identity will either (1) expose the person or someone else to
a significant risk of bodily harm; or (2) compromise an ongoing investigation.
[FN28] We note that the Government has already revealed the identity of at
least two unindicted co-conspirators. (See Indictment at
¶ 12vvvv (identifying a co-conspirator by the name
“Azzam”), 12dddddd (identifying a co-conspirator by the name
“Ahmed the German”).) The obligation we impose here is
continuing. If, after filing its original bill of particulars, the Government
determines that withholding the identity of a co-conspirator [*242] whose
identity it initially failed to disclose no longer meets the conditions
specified above, it is to provide that identity to defense counsel. See
Fed.R.Crim.P. 7(f) (providing that “[a] bill of particulars may be
amended at any time subject to such conditions as justice requires.”)
Therefore, in accordance with the foregoing conditions, we order the Government
to respond, in the bill of particulars we order today, to the following
requests insofar as those requests seek the identities of co-conspirators: (1)
those contained in the Dratel Declaration at
¶¶ 7(x), 7(aa), 7(kk), 7(ccc), 7(fff)-7(nnn), and
7(zzz)-(aaaa); (2) those contained in the Goltzer Letter at ¶¶ 2,
29; and (3) those contained in K.K. Mohamed’s Memorandum of Law at 6,
¶ 2. FN28. If a good faith
response to any of the requests which the Court has granted will entail a
security risk which is not apparent to the Court based on the present state of
the record, the Government may make an in camera submission to the Court
setting forth the reasons why this is so. 3. Requests for Details as to the Formation of the Alleged
Conspiracies, each Defendant’s Joining of the Conspiracies, and the
Defendants’ Roles in the Conspiracies Notes With respect to each of the conspiracies charged in the
Indictment, El Hage and K.K. Mohamed seek particulars as to the (1) date (and
in El Hage’s case, the location) that they joined the conspiracies
[FN29] and (2) the role they played in the various offenses. [FN30] El Hage
also seeks particulars with respect to (1) “when, where, how, and with
whom” he agreed to each of the criminal objectives set forth; [FN31]
and (2) “to the extent not otherwise named in the
Indictment,” the degree to which those criminal objectives were
achieved. [FN32] FN29. See Dratel
Declaration at ¶¶ 7(k), 7(oooo), 7(ssss), 7(vvvv),
7(aaaaa), 7(fffff); K.K. Mohamed’s Memorandum of Law at 6,
¶ 3. FN30. See Dratel
Declaration at ¶¶ 7(v); K.K. Mohamed’s
Memorandum of Law at 6, ¶¶ 1, 4-5. FN31. See Dratel
Declaration at ¶¶ 7(m)-(o), 7(r), 7(t), 7(pppp),
7(tttt)-(uuuu), 7(wwww)-(xxxx), 7(bbbbb)-(ccccc), 7(ggggg)-7(hhhhh),
7(iiiii)-(jjjjj). FN32. See id. at
¶¶ 7(p)-(q), 7(s), 7(u), 7(qqqq)-(rrrr), 7(yyyy)-
(zzzz), 7(ddddd)-(eeeee), 7(iiiii). In considering each of those requests, we are persuaded by the
reasoning articulated by Judge Weinfeld in United States v. Wilson, 565
F.Supp. 1416 (S.D.N.Y.1983), who, in the course of addressing similar requests,
noted that: The existence of a conspiracy and a
defendant’s participation therein is usually established by
circumstantial evidence based upon independent proof of each alleged
co-conspirator’s acts, conduct and statements and the totality of
conduct of all the participants and the reasonable inferences to be drawn
therefrom. Id. at 1439 (quoting United States v. Kahaner, 203
F.Supp. 78, 84 (S.D.N.Y.1962)) (internal quotation marks omitted).
“[T]he government is not required to prove,” therefore,
“exactly when or how a conspiracy was formed or when a particular
defendant joined the scheme….” United States v.
Matos-Peralta, 691 F.Supp. 780, 791 (S.D.N.Y.1988) (citing United
States v. Politi, 334 F.Supp. 1318 (S.D.N.Y.), aff’d, 516 F.2d
897 (2d Cir.1975)). To require specification of particulars with respect to the
formation of the conspiracy when such details need not be proved at trial
would, in our view, “unduly restrict the Government’s
proof.” Wilson, 565 F.Supp. at 1439 (citation omitted). For
that reason, requests, such as those made by the Defendants here, for
particulars as to when, where, how, and with whom each individual defendant
joined an alleged conspiracy have “almost uniformly been
denied.” Id. at 1438 (quoting Kahaner, 203
F.Supp. at 84, and citing United States v. Lieberman, 15 F.R.D.
278 (S.D.N.Y.1953)). [FN33] FN33. See also Nachamie, 2000 WL
37993, at *7 (citations omitted); Mittal, 1999 WL 461293, at *9 (citing Matos-Peralta, 691
F.Supp. at 791; United States v. Pacheco, 902 F.Supp. 469,
474-75 (S.D.N.Y.1995); United States v. Thomas, 94 Cr. 835, 1995 WL
312481, at *1 (S.D.N.Y. May 22, 1995)); United States v. Reinhold, 994
F.Supp. 194, 201 (S.D.N.Y.1998); Muyet, 945 F.Supp. at 599 (S.D.N.Y.1996); United
States v. Jimenez, 824 F.Supp. 351, 363 (S.D.N.Y.1993). [*243] Moreover, we believe that, in this case in
particular, the unusual scope and breadth of the conspiracies alleged weighs
against granting the requested particulars. As noted above, it is not the
Government’s burden at trial to establish a precise chronology as to
when each defendant, as well as other unindicted co-conspirators, joined the
conspiracies. Nor need the Government present evidence at trial as to the way
in which a Defendant’s acts furthered the conspiracies’
overall objectives. To require it to do so in a bill of particulars when the
conspiracy in question spread around the globe and included a large number of
people performing widely disparate tasks would, in our view, be unduly
burdensome. Moreover, it is not necessary to the Defendants’
preparation to have such information. The Defendants’ requests for
particulars as to the formation of the alleged conspiracies, the date,
location, circumstances under which each defendant allegedly joined, and as to
each Defendant’s role(s) in the charged conspiracies, see supra nn.
29-32, are therefore denied. C. Requests Pertaining to Non-Conspiracy Charges 1. Requests Involving the “Background” Section
of the Indictment Both El Hage and Salim include in their requests for particulars
numerous requests pertaining to the “Background” section of
the Indictment. (See Dratel Declaration at
¶¶ 7(a)-(j); Goltzer Letter at
¶¶ 3-11.) Introductory material such as that
contained in the “Background” section of the Indictment is
“undoubtedly helpful” to a jury in its effort to understand
“the full scope of the defendant’s activities, and to place
the defendant’s conduct in the appropriate context.” United
States v. Watt, 911 F.Supp. 538, 554 (D.D.C.1995); see also United
States v. Langella, 776 F.2d 1078, 1081 (2d Cir.1985) (refusing
to strike background paragraphs on ground that they provided relevant
information about the crimes charged). However, the “Background”
section does not constitute a criminal charge which the Defendant must answer.
We do not believe, therefore, that further detail as to the matters contained
in the Background section are necessary to the Defendants’ preparations
and we, therefore, do not order that the Government’s bill of
particulars be responsive to those requests. (See Dratel Declaration at
¶¶ 7(a)-(j); Goltzer Letter at
¶¶ 3-11.) 2. Requests Involving Perjury and False Statements Both El Hage and Salim have requested that the Government provide
particulars with respect to claims that they made false statements. It appears,
however, that the Government has already responded to those requests by
identifying the statements that it claims are false. (See El Hage’s
Reply Memorandum at 9 (indicating that the Government has responded to its
requests for particulars with respect to the Indictment’s allegations
of false statements); Letter from Garcia to McAllister of Jan. 19, 2000
(identifying the statements made by Salim that the Government believes to be
false)). Because the Government has already responded to these requests for
particulars, we do not order it to include those responses in the bill of
particulars that it is to file. 3. Miscellaneous Requests a. Odeh’s Request Defendant Odeh has submitted only a single request for information
to be included in a bill of particulars. He seeks specification as to
“what it is that [the Government will] claim that Mr. Odeh actually
did to further the bombing in either Kenya or Tanzania.” (Letter from
Young to Fitzgerald of November 3, 1999, attached as Exhibit A to
Odeh’s Notice of Motion, at ¶ MSO76.) Our review of
the Indictment, however, discloses several specific acts which Mr. Odeh is
alleged to have committed. The Government is not required, in a bill of
particulars, to articulate how each defendant’s activity furthered the
bombings. Whether acts furthered the bombings is an inference to be drawn by
the [*244] jury based on the Government’s proof of
the Defendant’s conduct. The bill of particulars need not respond to
that request. b. Witness List Defendant Salim requests that the Government provide a list of
witnesses who will testify at trial. Such information clearly extends beyond
what is required for the Defendants to be able to prepare a defense. That
request is therefore denied. CONCLUSION Subject to the conditions and limitations set forth above, the
Government is hereby directed to file a bill of particulars. The bill is to be
responsive to those specific requests for information that the Court has
identified above. To the extent that the Defendants’ motions seek the
inclusion of additional information in a bill of particulars, those motions are
denied. |