2000 WL 34528558 (S.D.N.Y.)

 

For opinion see 397 F.Supp.2d 465, 2005 WL 287404, 2003 WL 21692158, 2001 WL 1160604, 146 F.Supp.2d 373, 2001 WL 310614, 2001 WL 276714, 2001 WL 66314, 109 F.Supp.2d 211, 91 F.Supp.2d 600, 92 F.Supp.2d 189, 58 F.Supp.2d 113

 

 

United States District Court, S.D. New York.

 

UNITED STATES OF AMERICA,

v.

Usama Bin LADEN, et als., Khalfan Khamis Mohamed, Defendant.

 

No. 98-CR-1023(S-6)(LBS).

 

March 8, 2000.

 

Memorandum of Law in Support of Pre-Trial Motions on Behalf of Khalfan Khamis

Mohamed

 

David A. Ruhnke, Esquire, Ruhnke & Barrett, 47 Park Street, Montclair, New Jersey 07042, (973)744-1000, (973)746-1490 (fax).

 

Jeremy Schneider, Esquire, David Stern, Esquire, Rothman, Schneider, Soloway & Stern, 70 Lafayette Street, Suite 700, New York, New York 10013, (212)571- 5500, (212)571-5507 (fax), Attorneys for Khalfan Khamis Mohamed.

 

Before Hon. Leonard B. Sand, U.S.D.J.

 

TABLE OF CONTENTS

 

STATEMENT OF THE CASE ... 1

 

LEGAL ARGUMENT

 

POINT ONE:

 

IN ORDER TO ASSIST K.K. MOHAMED IN PREPARING HIS DEFENSE, AND IN ORDER TO AVOID UNFAIRLY PREJUDICIAL SURPRISE AT TRIAL, THIS COURT SHOULD ORDER THE UNITED STATES TO PROVIDE A BILL OF PARTICULARS AS SPECIFIED BELOW ... 4

 

POINT TWO:

 

IN ORDER TO AVOID DUPL1CATIVE SUBMISSIONS, K.K. MOHAMED JOINS THE MOTIONS OF CO-DEFENDANTS TO THE EXTENT THEY APPLY TO, AND MAY BENEFIT, HIM ... 7

 

POINT THREE:

 

K.K. MOHAMED SEEKS LEAVE FROM THIS COUR TO FILE SUCH ADDITIONAL MOTIONS AS MAY BE OCCASIONED BY ONGOING DISCOVERY. ... 8

 

POINT FOUR:

 

IN THE EVENT AN AGREEMENT CANNOT BE REACHED AMONG THE PARTIES, AN ASSISTANT UNITED STATES ATTORNEY MAY HAVE TO BE REMOVED FROM THE GOVERNMENT'S IN-COURT TRIAL TEAM. ... 8

 

CONCLUSION ... 10

 

STATEMENT OF THE CASE

 

Khalfan Khamis Mohamed [FN1] is one of 15 defendants named in a 267-count indictment now pending a September trial date in this district. Of the 15 defendants charged, six have been apprehended; of those six, three, including K.K. Mohamed, potentially face a sentence of death for their aleged roles in the bombings of the American Embassies in Dar es Saalam, Tanzania and Nairobi, Kenya on August 7, 1998. Of the six defendants who have been apprehended, K.K. Mohamed is the only one alleged to have played a direct role in the bombing of the embassy in Dar es Salaam. He is the only Tanzanian in the custody of the United States. [FN2]

 

FN1. Since there is another defendant in this case who also bears the surname "Mohamed," Khalfan Khamis Mohamed will hereinafter be referred to as "K.K. Mohamed" or "Khalfan Mohamed."

 

FN2. It is counsels' understanding that other Tanzanian nationals are in custody in Tanzania for roles played in the Dar es Salaam bombing and are pending prosecution by the Tanzanian government.

 

On December 17, 1998, a warrant was issued in the Southern District of New York for K.K. Mohamed's arrest, alleging violations of 18 U.S.C. å¤ å¤ 2332(b), 930 and 844. According to discovery, on October 5, 1999, at approximately 7:15 in the morning, K.K. Mohamed was arrested by representatives of the government of South Africa in Cape Town, where he had been living and working under an assumed name. The arrest, ostensibly, was on immigration-related charges. After a more than two-hour interrogation conducted by South African authorities, K.K. Mohamed was approached by representatives of the United States government, including agents of the FBI and an Assistant United States Attorney from the Southern District of New York. No extradition procedures were invoked; K.K. Mohamed, a citizen of Tanzania, was not offered an opportunity to consult with a representative of his own government. According to a 302 provided in discovery, K.K. Mohamed was offered the choice of going either to America or to Tanzania, and he stated, "Take me to America." On October 7, 1999, K.K. Mohamed entered the United States. On October 8, 1999 he was arraigned before this Court on the present charges.

 

Because K.K. Mohamed was arrested more than one year after most of his co-defendants, he was given until today's date to file his initial round of pre-trial motions.

 

LEGAL ARGUMENT

 

OINT ONE

 

IN ORDER TO ASSIST K.K. MOHAMED IN PREPARING HIS DEFENSE, AND IN ORDER TO AVOID

UNFAIRLY PREJUDICIAL SURPRISE AT TRIAL, THIS COURT SHOULD ORDER THE UNITED

STATES TO PROVIDE A BILL OF PARTICULARS AS SPECIFIED BELOW.

 

The purposes of a bill of particulars are well-settled and have been well-summarized by counsel to co-defendant el-Hage in his written memoranda and in oral argument before this Court on February 29. [FN3] Essentially, a bill of particulars should issue to enable a defendant "to prepare for trial, to prevent surprise, and to interpose a plea of doublejeopardy should he be prosecuted a second time for the same offense." United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987), quoted with approval in United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988). The rule governing issuance of a bill of particulars, F.R.Crim.P. 7(f), was amended in 1966 to eliminate any "for cause" element of a request for a bill and "to encourage a more liberal attitude by the courts toward bills of particulars." See Advisory Committee Note to 1966 Amendment to Rule 7(f); United States v. Rosa, 891 F.2d 1063, 1066 (3d Cir. 1989).

 

FN3. K.K. Mohamed adopts those arguments by reference and joins in the requests for a bill of particulars made on behalf of Mr. el-Hage to the extent that those requests have applicability to K.K. Mohamed.

 

As stated in a leading treatise, there are few generalized propositions concerning a bill of particulars that hold true for all cases:

It is repeated over and over in the cases that a bill of particulars may not call for evidentiary matter. Other cases say that the government will not be required to disclose its legal theory on a bill of particulars, though on this point there is disagreement with some courts saying that the government's theory is the only thing that can be compelled. Any generalized propositions of this sort must necessarily be unsatisfactory. The bill of particulars, as was said before, is intended to give the defendant enough information about the charge so that he or she may adequately prepare a defense and so that surprise will be avoided. It is not intended, as such, as a means of learning the government's evidence and theories. But to the extent that information is needed for the proper purposes of the bill, it will be required even if the effect is disclosure of evidence or theories.

It is probably true that defendant can be sufficiently advised of the nature of the charge without requiring the government to go into matters of detail or to lay out its entire case or to state its legal conclusions. But these should not be regarded as rules themselves, and the sole question should be whether adequate notice of the charge has been given the defendant. Thus, in order for the defendant to know against what he must defend it will frequently be necessary to require the government to disclose the time and place of the alleged offense, and the names of the persons present when the offense took place.

1 Wright, Federal Practice and Procedure (Criminal 3d 1999), å¤ 129 at pp. 658-664 (footnotes omitted).

In one sense, K.K. Mohamed's role in the indictment seems compartmentalized and limited to direct participation in the preparation for, and completed bombing of, the United States Embassy in Dar es Salaam. Thus, in terms of specific acts attributed to K.K. Mohamed, his name first appears at page 32 of the indictment where it is alleged that "on or about May 4, 1998," K.K. Mohamed "applied for a Tanzanian passport in the name 'Zahran Nassor Maulid.' " [Overt act uuuu of count one.] His name is last mentioned in the indictment (again, in terms of conduct attributed to him personally, as distinct from conspiratorial or accessorial liability) at page 39 of the indictment where it is alleged that on August 7, 1998, shortly after the explosion at the Dar es Salaam embassy, K.K. Mohamed "took photographs in the direction of the American Embassy from within the Suzuki Samurai; ..." [Ovcrt act eeeeee of count one.]

In preparing for trial, in avoiding surprise, and in deciding what to investigate and (perhaps as important) what not to investigate, defense counsel need to know whether the relatively limited role ("limited" by comparison with what is alleged as to other defendants) attributed to K.K. Mohamed in the indictment will be the actual extent of the government's trial proofs. [FN4] Is it, for example, not necessary for defense counsel to conduct an investigation in Kenya if the government's theory of the case as to K.K. Mohamed is that he is liable only as a member of the larger conspiracy and played no direct role in the Kenya bombing.

 

FN4. The case of K.K. Mohamed is somewhat different than that of the other defendants since K.K. Mohamed has had a significantly shorter period of time in which to prepare a defense, having come into custody nearly one year after most of his co-defendants. Thus, there is a greater urgency to this motion since defense counsel do not have time to "spin wheels" or investigate allegations that will not be the subject of proof at trial.

 

With the above discussion in mind, counsel makes the following specific requests by way of a motion for a bill of particulars:

1. Particularize the role, if any, played by K.K. Mohamed with regard to the allegations in the indictment related to the bombing of the American Embassy in Nairobi, Kenya.

2. Particularize the identity of "co-conspirator two," who is alleged, at overt act kkkk of count one, to have met with K.K. Mohamed in the last week of July, 1998, at house 213 in the Ilala district of Dar es Salaam, "to make final preparations for the bombing of the United States Embassy in Dar es Salaam, Tanzania."

3. Particularize the date on which K.K. Mohamed became a member of the conspiracies charged in counts one through six of the indictment.

4. Particularize the role played by K.K. Mohamed, if any, in the organization identified in the indictment as "al Qaeda."

5. Particularize the role played by K.K. Mohamed, if any, in overt acts set out in count one of the indictment where K.K. Mohamed is not specifically named. (This would appear to be all overt acts with the exception of acts uuuu, wwww, xxxx, zzzz, kkkkk and eeeeee.)

The two salutary purposes to be served by requiring the United States to respond, by way of a bill of particulars, to these requests, will be, first, to allow defense counsel to conduct an investigation that stays focused on the actual allegations against K.K. Mohamed and, second, to avoid surprise at trial. If, as the indictment seems to suggest, K.K. Mohamed's role in this case is limited to his participation in the Dar es Salaam bombing, defense counsel need to know that. This is especially so, as noted before, since K.K. Mohamed's counsel have had only since October of 1999 to prepare a defense to the charges while simultaneously preparing a case that K.K. Mohamed should not be targeted for capital punishment.

 

POINT TWO

 

IN ORDER TO AVOID DUPLICATIVE SUBMISSIONS, K.K. MOHAMED JOINS THE MOTIONS OF

CO-DEFENDANTS TO THE EXTENT THEY APPLY TO, AND MAY BENEFIT, HIM.

 

As set forth in the declaration of David A. Ruhnke, Esquire, filed herewith, K.K. Mohamed seeks leave from this Court to join the motions previously filed on behalf of his co-defendants to the extent that such motions apply to, and may benefit, him. This will avoid this Court reviewing duplicative submissions and will also be cost-effective since K.K. Mohamed's counsel will not have to repeat the efforts of co-counsel.

 

POINT THREE

 

K.K. MOHAMED SEEKS LEAVE FROM THIS COURT TO FILE SUCH ADDITIONAL MOTIONS AS MAY

BE OCCASIONED BY ONGOING DISCOVERY.

 

As stated in Court during the proceedings of February 29, counsel and the government have agreed upon a scheduled in an effort to resolve, to the extent possible, outstanding discovery issues. The first priority of that ongoing process is to resolve questions concerning discovery that is need to perfect additional motions. Once that process is complete, K.K. Mohamed, along with other counsel, will be filing additional motions.

 

POINT FOUR

 

IN THE EVENT AN AGREEMENT CANNOT BE REACHED AMONG THE PARTIES, AN ASSISTANT

UNITED STATES ATTORNEY MAY HAVE TO BE REMOVED FROM THE GOVERNMENT'S IN-COURT

TRIAL TEAM.

 

K.K. Mohamed was taken into the custody of the United States on October 5, 1998 at the Cape Town (South Africa) International Airport. The representatives of the United States included FBI agents and an Assistant United States Attorney from the Southern District of New York. Thereafter, K.K. Mohamed was the subject of lengthy interrogation. It is unclear from information presently available to counsel whether or not the Assistant United States Attorney participated in that interrogation or may be needed as a witness at trial.

Counsel to K.K. Mohamed are willing to agree to the conditions suggested by the government on February 29 in an effort to obviate any necessity of calling the Assistant as a witness. In order to do so, however, counsel require assurances that the Assistant will not be needed as a witness.

 

CONCLUSION

 

For the reasons set forth above, and to be presented at oral argument, K.K. Mohamed's pre-trial motions should be granted in all respects.

 

Motions  and Filings

 

• Reply Memorandum of Law in Support of Defendant Mohamed Sadeek Odeh's Motions to Dismiss for Lack of Venue, to Partially Disqualify Certain Assistant United States Attorneys, for Discovery and for a Bill of Particulars (Feb. 22, 2000)

 

&#$149; Reply Memorandum of Law in Support of Defendant Mohamed Sadeek Odeh's Motion to Dismiss for Lack of Jurisdiction (Feb. 18, 2000)