United States v. Bin Laden

2000 WL 34528557 (S.D.N.Y.)

For opinion see 397 F.Supp.2d 465, 2005 WL 287404, 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,

Usama Bin LADEN, et al., Defendants.

No. 98 Cr. 1023(LBS).

February 22, 2000.

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

Michael Young, Esq., 165 Christopher Street, New York, New York, 10014, (212) 242-4336.

Carl J. Herman, Esq., 570 West Mount Pleasant Avenue, Suite 101, Livingston, New Jersey, 07039, (973) 740-8944.

Sandra L. Babcock, Esq., 220 South Sixth Street, Suite 215, Minneapolis, Minnesota 55402, (612) 721-9414, Attorneys for Defendant Odeh.

TABLE OF CONTENTS

POINT I

ASSISTANT UNITED STATES ATTORNEY FITZGERALD AND ANY OTHER PROSECUTOR WHO PARTICIPATED IN THE INTERROGATIONS OF DEFENDANT ODEH OR THE SURROUNDING EVENTS SHOULD BE PARTIALLY DISQUALIFIED FROM APPEARING AS AN ADVOCATE FOR THE GOVERNMENT AT TRIAL, OR AT ANY PRE-TRIAL PROCEEDING IN WHICH THOSE INTERROGATIONS ARE AT ISSUE. ... 1

A. Contrary to the government's characterization, the defense is not asking that Mr. Fitzgerald be totally disqualified from any involvement in this case, but only that he be disqualified from serving as the advocate for the government at trial or at any pretrial proceedings in which the interrogations in which he participated are at issue. ... 1

B. The Second Circuit has repeatedly held that an attorney must be disqualified from serving as his party's advocate at trial if there is even a possibility that he might be called as a witness by either side at trial. ... 2

C. The defense's need for Mr. Fitzgerald as a witness to the events in which he participated is not cumulative. ... 4

POINT II

COUNTS 1 THROUGH 244 OF INDICTMENT S(6) SHOULD BE DISMISSED FOR LACK OF VENUE. ... 6

A. The government is incorrect in claiming that venue can properly be based on 18 USC § 3238 even if one or more acts relating to the commission of the offense occurred in a district of the United States. ... 6

B. The overt acts relating to perjury and false statements do not establish venue for the conspiracy charges in this district under § 3237. ... 9

C. Since the substantive counts all contain allegations regarding acts which occurred in various districts within the United States, venue for those counts cannot properly be based on § 3238. ... 11

POINT III

Defendant Odeh is entitled to have his single bill of particulars request granted. ... 14

POINT IV

The government has refused to provide the defense with discovery materials to which it is constitutionally entitled, and without which it cannot submit its remaining motions or prepare for trial. ... 17

POINT I

ASSISTANT UNITED STATES ATTORNEY FITZGERALD AND ANY OTHER PROSECUTOR WHO

PARTICIPATED IN THE INTERROGATIONS OF DEFENDANT ODEH OR THE SURROUNDING EVENTS

SHOULD BE PARTIALLY DISQUALIFIED FROM APPEARING AS AN ADVOCATE FOR THE

GOVERNMENT AT TRIAL, OR AT ANY PRE-TRIAL PROCEEDING IN WHICH THOSE

INTERROGATIONS ARE AT ISSUE.

At the outset, it should be noted that the government, perhaps inadvertently, mischaracterizes the relief which the defense is seeking in this motion. It insists that the defense is seeking to disqualify Mr. Fitzgerald from any further involvement in the case and then argues that such an extreme sanction is not justified by the circumstances and would prejudice the government.

What the defense motion actually seeks, however, is much more limited. Mr. Fitzgerald can continue to play the role which he has elected to play - as the individual who investigates, interrogates and charges suspects and prepares the government's case for trial. However, given that he has chosen so totally to immerse himself in the factual events relating to the critical legal issues in this case - such as the unrecorded interrogations of defendant Odeh - he cannot properly serve as the government's advocate at the hearings and trial at which the facts relating to these events will be developed and these legal issues determined.

Defendant Odeh submits that the circumstances which Mr. Fitzgerald himself created in this case establish that the defense has a compelling need to call Mr. Fitzgerald as a witness. He is one of the principal witnesses to thirteen days of interrogation of Mr. Odeh which will be the principal focus of both the government's and the defendant's case at trial.

The defense also submits, however, that the compelling need test is only appropriate when the disqualification issue is not raised until the eve of trial or the midst of trial or in post-trial motions. Where, as here, the defense seeks only partial disqualification and seeks it well in advance of trial, the appropriate test is whether there is a genuine possibility that the prosecutor, because of the role he chose to play in the events to be litigated at trial, might be needed by either side as a witness at the trial.

The government urges the Court to reject this argument, insisting that defendant Odeh "cannot point to one court that has come anywhere close to adopting his self-serving suggestion that a prosecutor should be disqualified as counsel if 'there is even a possibility that he might be called as a witness.' (Odeh Mem. At 14 n. 7)" (Govt Mem. At 115).

In fact, however, defendant Odeh has cited three such cases, all from the Second Circuit - United States v. Locascio, 6 F.3d 924, 933 (2d Cir. 1993), United States v. Dennis, 843 F.2d 652, 656 (2d Cir. 1988) and United States v. McKeon, 738 F.2d 26, 35 (2d Cir.1984). Those cases all clearly state that an attorney must be disqualified from serving as his party's advocate at trial if there is even a possibility that either party may need to call him as a witness at trial. This Court itself also indicated that such was the appropriate standard in Carbone v. Dalsheim, 1986 WL 11784 at 3 (S.D.N.Y. 1986).

As defendant Odeh explained in his main memo, although these cases all involved defense counsel, the standard is equally applicable to prosecutors. See eg. United States v. Hosford, 782 F.2d 936, 939 (11th Cir. 1986). Indeed, one of the cases on which the government is relying - United States v. Watson, 87 F.3d 927, (7th Cir. 1996) - acknowledged as much when it noted that "[t]he district court was correct to flag the issue of the potential problem that may arise when an AUSA is both the trial attorney and a potential witness." [FN1]

FN1. Watson involved a government appeal from a pretrial suppression decision and therefore did not reach the issue of whether such a prosecutor, upon proper motion, should be partially disqualified.

If the government is claiming that the standard established by the Second Circuit in Locascio, Dennis and McKeon is limited to defense counsel and that prosecutors may only be disqualified, even well in advance of trial, upon a much more stringent showing - compelling need - then it needs to explain how such disparate treatment of opposing sides in an adversarial proceeding is either constitutional or just.

C. The defense's need for Mr. Fitzgerald as a witness to the events in which he participated is not cumulative.

The government is also incorrect in insisting that the defense may be precluded from calling Mr. Fitzgerald as a witness merely because other government agents may have witnessed some or all of what Mr. Fitzgerald witnessed. The Court is not dealing here with a case of duplicative impeachment - where the prosecutor was only one of several government agents who interviewed a government witness and therefore one of the other agents can take the stand as easily as the prosecutor to say that the witness's statements to them were different than his testimony at trial. See eg. United States v. Prantil, 764 F.2d 548, 552 (9th Cir. 1984); United States v. Tamura, 694 F.2d 591, 601 (9th Cir.1982).

Rather, the Court is dealing here with a circumstance where, in the absence of any recording, the only witnesses as to the method and content of the defendant's interrogation were the agents of the opposing party. Given that fact, defendant Odeh has both a compelling need and a constitutional right to call as many - or all - of those agents in an effort to ferret out what happened during this crucial period. The government cannot seriously claim that defendant Odeh may properly be limited to calling only one or a select few of them. Especially since the government failed to record these interrogations, it does not and could not credibly claim in advance that the testimony of these agents, particularly when probed by defense counsel, as to what happened during the thirteen days in question would be totally identical and therefore merely "cumulative" of one another. To the contrary, defendant Odeh's constitutional right to call several or all of them if need be provides his best and only hope of distilling for the jury what really happened from the testimony of such an adverse group.

POINT II

COUNTS 1 THROUGH 244 OF INDICTMENT S(6) SHOULD BE DISMISSED FOR LACK OF VENUE.

As the defense explained in its main memorandum on this issue, the Second Circuit has held that section "3238 applies only to offenses 'not committed in any district.' " United States v. Gilboe, 684 F.2d 235, 239 (2d Cir. 1982). It did so based on its finding that the plain language of the provision so stated. Id.

Nevertheless, the government insists that this Court should hold that venue may be based on § 3238 even if one or more acts relating to the offense were committed in a district of the United States (Govt memo at 47-52). In so arguing, the government invites this Court to ignore not only the holding of its supervisory court and the plain language of the statute but also the Constitution of the United States.

Article III, § 2 of the Constitution provides that

the Trial of all Crimes...shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Under this provision, Congress is authorized to designate the place of trial only if the offense was "not committed within any State." That is precisely what Congress did when it enacted § 3238. But it only did so, and was only constitutionally permitted to do so, with regard to offenses which were not committed within any State.

Hence, the title of § 3238 - "Offenses not committed within any district." The government's attempt to dismiss this title as merely an "oversight" (Govt memo at 50) flatly ignores the Constitutional limitation on Congress's power in this area. Under the plain wording of Article III, § 2, Congress lacks the authority to designate a different venue when the offense is committed, in whole or in part, within any State. Rather, under Article III, § 2, in such a circumstance, the trial may only be had within that State.

The government also argues that the use of the word "begun" in § 3238 means that venue for any offense which was "begun" outside any district may be based on § 3238 even if one or more acts relating to the offense took place within one or more districts of the United States. This argument is likewise clearly invalid.

In all likelihood, the word "begun" was included in the statute merely to address the problem which existed in cases such as United States v. M'Gill, 4 U.S. (4 Dall.) 426, 1 L.Ed. 894 (1806). In that murder prosecution, the defendant struck the fatal blow while on shipboard on the high seas, but the victim did not die until after he had been put ashore outside the jurisdiction of the United States. The Supreme Court held that since the crime of murder was not complete until the victim's death, there could be no prosecution for murder under the predecessor of § 3238. Id. 4 Dall. at 429, 4 U.S. at 429. Congress apparently sought to address this problem by including the word "begun" in § 3238.

Regardless of why the word "begun" was included in the statute, however, it clearly could not have been included for the purpose which the government claims. According to the government, § 3238 "contains nothing suggesting that it does not apply to offenses which were 'begun' overseas but committed in part in the United States." (Govt memo at 50). To the contrary, the title of the provision says exactly that. And when that title is read in conjunction with Article III section 2, it is transparently clear that Congress did not, and constitutionally could not, extend the reach of § 3238 to the situation which the government seeks to apply it in this case - offenses which may have been "begun" outside the United States but which included acts committed within one or more districts of the United States.

As the defense explained in its main brief, the Fourth and Fifth Circuits have adopted the position advocated by the government. The government urges this Court to do likewise and to reject the Second Circuit's decision in United States v. Gilboe as "ill-informed and unwarranted" (Govt memo at 50). While the Fourth and Fifth Circuits are free to disagree with the decision of the Second Circuit, this Court is not. Moreover, the defense respectfully submits that since the Fourth And Fifth Circuits ignored the limitations which the Constitution placed on Congress's authority to legislate in this area, it is in fact their decisions which are incorrect.

Apparently realizing the weaknesses in its claim that §3238 provides a basis for venue even when acts relating to the offense charged were committed within one or more districts, the government also advances two back-up arguments. With regard to the conspiracy counts (counts 1 and 3 through 6) the government maintains that venue is also proper in this district under 18 USC § 3237 because several of the alleged overt acts, namely the perjury and false statement allegations against defendants Wadih El hage and Ali Mohamed, occurred in this district. And the government insists that even § 3238 is limited to charges in which no act was committed within any district, no act relating to the substantive counts (counts 7 through 244) occurred within any district of the United States and therefore venue is properly determined for these counts under § 3238. For the reasons that follow, both of these arguments are invalid.

B. The overt acts relating to perjury and false statements do not establish venue for the conspiracy charges in this district under § 3237.

Counts 1 and 3 through 6 charge the defendants with conspiracy to kill United States nationals, murder, use of weapons of mass destruction against United States nationals, destruction of United States property and destruction of United States national defense utilities. By seeking to base venue in this district for these offenses solely on the overt acts relating to alleged false statements by defendants Wadih El Hage and Ali Muhamed, the government in effect concedes that nothing which had any sort of causal connection to the conspiracies charged occurred within this district.

Wadih El Hage and Ali Muhamed were not in this district because they chose to be here; they were here solely because the government compelled and induced them to be here. The government's attempt to base venue under § 3237 solely on their alleged perjury and false statements is therefore nothing more than an another attempt artificially to manufacture venue in this district because the government wants to try the case here for the reasons explained in the defense's main memorandum on this issue.

In this regard, the circumstances here are similar to those which the Second Circuit condemned in United States v. Archer, 486 F.2d 670 (2d Cir. 1973) - an attempt by the government through its own actions artificially to manufacture venue (or in Archer, jurisdiction) where, but for the government's own acts, it would not exist. Although the allegation that the perjury or false statements occurred in this district establishes venue here for the perjury and false statement counts of the indictment, it does not establish venue for the conspiracy charges since all of the causal events relating to those charges occurred in other districts and abroad.

C. Since the substantive counts all contain allegations regarding acts which occurred in various districts within the United States, venue for those counts cannot properly be based on § 3238.

Each of the substantive counts (counts 7 through 244) begins with the statement that it incorporates by reference paragraphs 1 through 9 of the indictment. As explained in the defense's main memorandum on this issue, paragraphs 1 through 9 containing numerous allegations that events which led up to and were part of those crimes occurred within various districts of the United States.

Moreover, the conspiracies charged in counts 1 and 3 through 6 of the indictment, conspiracies which the government claims led up to and were part of the crimes charge in counts 7 through 244, contain a large number of allegations of events occurring in various districts of the United States. Since all of those allegations establish that the offenses charged in counts 7 through 244 of the indictment were committed in part within various districts of the United States, venue cannot properly be established under § 3238.

Regarding this issue, it should also be noted that the government has a singularly odd and inconsistent interpretation of the phrase "incorporated by reference." When it seeks to rely on the alleged perjuries and false statements as a basis for establishing venue under § 3237 for the conspiracies charged in counts 1 and 3 through 6, it does so by relying on the fact that the allegations concerning those alleged acts, although mentioned only in Count 1, are "incorporated by reference" into the rest of the conspiracy counts.

It then turns around and insists that although counts 7 through 244 incorporate by reference the allegations in paragraphs 1 through 9, that really does not mean that the acts alleged in paragraphs 1-9 - which establish that venue for those offenses exists in various districts of the United States - are any part of the offenses charged in counts 7 through 244. To the contrary, the government insists, despite the plain working of the paragraphs which are incorporated by reference, that those offenses have no nexus with any district of the United States thereby permitting venue to be established under § 3238.

Obviously, the government's first position is the correct one - when a count incorporates by reference allegations from another count, those allegations become part of the crime described by the count which incorporates them. Since that means that counts 7, trough 244 all contain allegations of acts which occurred within various districts of the United States, the government cannot properly rely on § 3238 artificially to create venue in this district for those counts.

The government begins its argument on venue by asserting that in order to survive a pretrial motion to dismiss on venue grounds, "the indictment need only allege acts that create proper venue." It then goes on to insist that it satisfied this requirement by including the allegation in each of the disputed counts that the offense was committed "out of the jurisdiction of any particular state or district," and that at least one defendant "was first brought to and arrested in the Southern District of New York." (Govt memo at 44, 47, 53). This according to the government is sufficient since it alleges acts that create venue in this district under § 3238. Accordingly, the government seems to suggest, the Court should look no further.

What the government overlooks in making this argument is that if the indictment also alleges acts which establish that venue exists in other districts under § 3232 or § 3237, then reliance on § 3238 to place venue in this district is improper and the indictment must be dismissed even if it contains allegations tracking the language of § 3238. Since that is clearly the case with regard to Counts 1 and 3 through 244 of the indictment in this case, those charges must be dismissed.

POINT III

Defendant Odeh is entitled to have his single bill of particulars request

granted.

As explained in his omnibus motion, defendant Odeh has made only a single bill of particulars request of the government:

Also, in the form of a bill of particulars, we are requesting that you specifically identify what it is that you claim that Mr. Odeh actually did to further the bombing in either Kenya or Tanzania. Although the indictment provides such information with regard to every other defendant who is accused in the bombing counts, it does not provide such information as to Mr. Odeh. This information is essential not only to enable us to prepare for Mr. Odeh's defense at trial, but also to enable us to prepare our submission on the issue of whether Mr. Odeh's alleged involvement is such that the government would or would not be justified in seeking the death penalty as to this defendant.

The government's response was that "[y]our request for a bill of particulars is declined."

Now, in its memorandum of law, the government seeks to mischaracterize this simple and fundamental request as an effort to compel the government to reveal the "evidence which the government intends to adduce to prove [defendant Odeh's] criminal conduct." It is nothing of the sort. Rather, it is merely a request for what every defendant in a criminal proceeding is entitled to - a clear statement of the specific acts which he is accused of committing in sufficient detail to enable him to prepare a defense.

Although the government refers in its response to the number of pages and the number of overt acts in the indictment, the inescapable fact is that after reviewing all of those pages and overt acts, and after reviewing the discovery which the government has provided to date, defendant Odeh and his counsel still have no idea what the government is claiming that Mr. Odeh did to further the bombing in either Kenya or Tanzania. Indeed, if the indictment contained any such information, the government would surely have pointed it out in its response. There simply is no such information, and unless the government is ordered to provide it, Mr. Odeh cannot possibly be in a position to defend himself against the charges in this case.

Rule 7(f) of the Federal Rules of Criminal Procedure provides for a bill of particulars when, as here, the indictment fails to identify with sufficient particularity the acts which defendant Odeh is accused of committing which the government contends makes him guilty of the crimes charged. Such information is essential in order to enable defendant Odeh to prepare to counter those allegations at trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense. See Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 302, 71 L.Ed. 545 (1927); United States v. Glaze, 313 F.2d 757, 759 (2d Cir.1963) (quoting United States v. Murray, 297 F.2d 812, 819 (2d Cir.), cert. denied, 369 U.S. 828, 82 S.Ct. 845, 7 L.Ed.2d 794 (1962)); see generally 1 C. Wright, Federal Practice and Procedure § 129 (2d ed. 1982).

The information sought is also essential to enable defendant Odeh to provide a meaningful submission on why the government should not seek the death penalty as to this defendant. If the government refuses to provide this specificity, any ensuing conviction will be invalid. See eg. United States v. Bortnovsky, 820 F.2d 572 (2d Cir. 1987); United States v. Davidoff, 845 F.2d 1151 (2d Cir. 1988).

Consequently, the defense respectfully requests that the Court order the government to provide defendant Odeh with the limited information which he seeks.

POINT IV

The government has refused to provide the defense with discovery materials to

which it is constitutionally entitled, and without which it cannot submit its

remaining motions or prepare for trial.

The government makes no attempt in its response to justify its refusal to comply with defendant Odeh's discovery requests. The first thirty-two of these requests deal with information in the government's possession which defendant Odeh must have in order to investigate and prepare the remainder of his pre-trial motions. The rest of the requests ask for the discovery of items which are referred to in the indictment and which The government has not provided to the defense to date.

In addition, defendant Odeh joined in the discovery requests made by co-defendant al-'Owhali. The government, although acknowledging this joinder (see Fitzgerald ltr dtd December 3, 1999 at p. 1 - attached to defendant Odeh's omnibus motion), completely ignored these requests except to say that defendant Odeh has no criminal record (Id.). Thus, at this late date, defendant Odeh has not even received responses from the government on such fundamental issues as whether he was ever intercepted by any electronic surveillance (see al-'Owhali letter dated October 25, 1999 at request # 31 - attached to defendant Odeh's omnibus motion).

Unless these discovery requests are granted, defendant Odeh will not be able to complete his pre-trial motions or prepare for trial. Consequently, it is respectfully requested that the Court order the government to provide the requested information.