Following a lengthy jury trial in the United States District
Court for the Southern District of New York (Duffy, J.), defendants were
convicted of various crimes related to the bombing of the World Trade Center
Complex in New York City. Defendants now appeal, asserting a congeries of
arguments. For the reasons that follow, we affirm the judgment of the district
court but remand for re-sentencing and decline to exercise jurisdiction over
certain post-trial motions pending before the district court.
TABLE OF CONTENTS
Background
................................................. 4
I. Suppression Motions
.................................. 8
A. Motions to Suppress Materials Seized From Ajaj
... 8
(1) Ajaj's Motion ...............................
9
(2) Abouhalima's Motion .........................
12
(a) Rule 403 ...............................
13
(b) First Amendment ........................
17
(3) Ayyad's Motion ..............................
17
B. Motion to Suppress Contents of the Storage
Shed .. 19
(1) Probable Cause ..............................
20
(2) Franks Hearing
.............................. 22
(3) Good Faith Reliance .........................
23
II. Procedural Motions
................................... 24
A. Abouhalima -- Severance
.......................... 24
(1) Ajaj's Holy War Materials ...................
27
(2) Salameh's Summation .........................
29
B. Abouhalima -- Involuntariness of Statement
....... 31
C. Ayyad -- Failure to Grant Funds for Experts
...... 33
D. Ajaj -- Eastern District Plea Agreement
.......... 35
III. Jury Selection
....................................... 40
IV. Evidentiary Rulings
.................................. 44
A. Admission of Evidence Regarding Bombing
Victims .. 44
(1) Probative Value .............................
45
(2) Danger of Unfair Prejudice ..................
46
B. Admission of Evidence Regarding Nosair
........... 47
(1) Photographs of Salameh and Nosair ...........
47
(2) Admission of Abouhalima's Contacts
with
Nosair .................................
49
C. Admission of
Identification....................... 50
(1) Use of Photo Array ..........................
54
(2) Subsequent In-Court Identifications .........
56
D. Examination of Storage Facility Employee
......... 58
(1) Leading Questions ...........................
59
(2) Comments Regarding Meeting ..................
60
E. Testimony of the Government's Fingerprint
Expert . 61
F. Admission of DNA Evidence
........................ 65
G. Confrontation Clause
............................. 68
(1) Moneeb ......................................
69
(2) Butler ......................................
70
(3) Moharam .....................................
71
H. Requested Read-back of Testimony
................. 73
V. Jury Arguments
....................................... 75
A. Prosecutorial Misconduct as to Abouhalima
........ 76
(1) Government Misrepresentations ...............
76
(a) Witnesses ..............................
77
(b) Affiliation With Yousef ................
77
(c) Inexplicable Nervousness ...............
78
(2) Jury Fear ...................................
78
(3) Government Vouching .........................
79
(4) Burden of Proof .............................
81
B. Prosecutorial Misconduct as to Ajaj
.............. 84
(1) Government's Improper Arguments .............
84
(2) Attacks on the Defense ......................
89
(3) Change in Summation Theory ..................
91
VI. Jury Charge
.......................................... 93
A. The Bully Hypothetical
........................... 93
B. Abouhalima -- Terrorist
Materials................. 103
C. Elements of the Charged Conspiracy
............... 106
D. Ajaj's Objection to the Jury Charge
.............. 111
(1) Essential Nature of Plan ....................
112
(2) Inclusion of the Pinkerton Charge
........... 116
(3) Failure to Charge on Withdrawal Sua
Sponte .. 119
VII. Sufficiency of the Evidence
.......................... 122
A. Standard of Review
............................... 122
B. Ajaj
............................................. 124
C. Abouhalima
....................................... 134
VIII. Unfair Trial - Due Process
........................... 139
IX. Post-Trial Motions
................................... 140
A. New Trial (Ajaj)
................................. 140
B. Ineffective Assistance of Counsel
................ 146
X. Sentencing
........................................... 149
Conclusion
................................................. 150
BACKGROUND
On April 24, 1992, Ahmad Mohammad Ajaj departed from his
home in Houston, Texas, and traveled to the Middle East to attend a terrorist
training camp, known as "Camp Khaldan," on the Afghanistan-Pakistan border.
There he learned how to construct homemade explosive devices. During his time in
Pakistan, Ajaj met Ramzi Ahmed Yousef. Together the two plotted to use their
newly acquired skills to bomb targets in the United States.
In the fall of 1992, after formulating a terrorist plan,
Ajaj and Yousef traveled to New York under assumed names. Ajaj carried with him
a "terrorist kit" that he and Yousef had assembled in Pakistan. The kit
included, among other things, handwritten notes Ajaj had taken while attending
explosives courses, manuals containing formulae and instructions for
manufacturing bombs, materials describing how to carry-off a successful
terrorist operation, videotapes advocating terrorist action against the United
States, and fraudulent identification documents.
On September 1, 1992, Ajaj and Yousef, using false names and
passports, arrived at John F. Kennedy International Airport in New York. At
customs, INS inspectors discovered that Ajaj's passport had been altered and,
consequently, they searched his belongings. Upon discovery of the "terrorist
kit," Ajaj became belligerent. The INS seized Ajaj's "terrorist kit" and placed
him under arrest. Ajaj was later indicted in the United States District Court
for the Eastern District of New York for passport fraud. He pled guilty and was
sentenced to six months' imprisonment.
During Ajaj's encounter with the INS inspectors, he denied
that he was traveling with Yousef, who proceeded unmolested to the secondary
inspection area where he presented an Iraqi passport and claimed political
asylum. Yousef was arrested for entering the United States without a visa.
Eventually he was released on his own recognizance.
Once in New York, Yousef assembled a team of trusted
criminal associates, including Mohammed Salameh, Nidal Ayyad, Mahmoud Abouhalima
and Abdul Rahman Yasin. Together, the conspirators implemented the bombing plot
that Ajaj and Yousef had hatched overseas. Ayyad and Salameh opened a joint bank
account into which they deposited funds to finance the bombing plot. Some of
that money was later used by Salameh to rent a storage shed in Jersey City, New
Jersey, where the conspirators stored chemicals for making explosives. Yousef
also drew on that account to pay for materials described in Ajaj's manuals as
ingredients for bomb making.
The first target of the conspirators' plot was the World
Trade Center. Ayyad used his position as an engineer at Allied Signal, a large
New Jersey chemical company, to order the necessary chemical ingredients for
bomb making, and to order hydrogen tanks from ALG Welding Company that would
enhance the bomb's destructive force. Abouhalima obtained "smokeless powder,"
which the conspirators used to make explosives. Smokeless powder, and all the
other chemicals procured by the conspirators for the bomb, were stored in the
shed rented by Salameh.
Abouhalima helped Salameh and Yousef find a ground floor
apartment at 40 Pamrapo Avenue in Jersey City. The apartment fit the
specifications in Ajaj's manuals for an ideal base of operations. In the 40
Pamrapo apartment, Abouhalima, Salameh, Yousef and Yasin mixed the chemicals for
the World Trade Center bomb, following Ajaj's formulae. Abouhalima also obtained
a telephone calling card, which the conspirators used to contact each other and
to call various chemical companies for bomb ingredients.
During this entire period, although Ajaj remained
incarcerated, he kept in telephone contact with Yousef. By doing so, Ajaj stayed
abreast of the conspirators' progress in carrying out the terrorist plot and
attempted to get his "terrorist kit" into Yousef's hands. Because Ajaj was in
jail and his telephone calls were monitored, Ajaj and Yousef spoke in code when
discussing the bomb plot.
On February 23, 1993, Salameh rented a yellow van at DIB
Leasing, a Ryder dealership in Jersey City. The conspirators loaded their
homemade bomb into that van. On February 26, 1993, the conspirators drove the
bomb-laden van into a below-ground parking lot on the B-2 level of the World
Trade Center Complex and, using a timer, set the bomb to detonate. At 12:18
p.m., the bomb exploded, killing six people, injuring over a thousand others,
and causing hundreds of millions of dollars in damage.
After the explosion, Ayyad took credit for the bombing on
behalf of the conspirators by, among other things, writing an anonymous letter
to the New York Times explaining that the attack was
undertaken in retaliation for American support of Israel. The letter threatened
future terrorist "missions."
Immediately after the bombing, Yousef, Abouhalima and Yasin
fled the country. Abouhalima was apprehended in Egypt prior to the trial and
turned over to federal agents by Egyptian authorities, but Yousef and Yasin
remained fugitives. Salameh arranged to flee as well, but was arrested the day
before he planned to depart when he made the ludicrous mistake of going back to
the Ryder truck rental office to get his rental deposit back. On March 1, 1993,
Ajaj completed his term of imprisonment on the passport fraud conviction and was
released. Approximately one week later, on March 9, Ajaj was taken into
government custody on an INS detainer.
In September 1993, Ayyad, Abouhalima, Ajaj, Salameh, Yousef
and Yasin were indicted in the United States District Court for the Southern
District of New York (Duffy, J.), on various charges relating to their
participation in the plot to bomb the World Trade Center. Yousef and Yasin were
still fugitives at the time of trial.
The trial lasted six months and involved over 1000 exhibits
and the testimony of more than 200 witnesses. The defendants were convicted on
all counts and each was sentenced to 240 years' imprisonment. Defendants now
appeal their convictions and sentences, raising a variety of issues.
I.
SUPPRESSION MOTIONS
A. Motions to Suppress Materials Seized from
Ajaj
1. Ajaj's Motion
Ajaj claims that Judge Duffy should have suppressed the
terrorist materials seized from him at Kennedy Airport. He maintains that the
materials were obtained and then held pursuant to an illegal grand jury
subpoena. Ajaj's argument has no merit.
On October 6, 1992, Ajaj pled guilty in the United States
District Court for the Eastern District of New York (Raggi, J.) to one
count of passport fraud. After the guilty plea, Judge Raggi ordered the
government to return Ajaj's belongings or to come forward with a reason for
failing to do so.
On December 22, 1992, an Assistant United States Attorney
for the Eastern District of New York served a grand jury subpoena on Ajaj
calling for production of many of the terrorist materials seized at Kennedy
Airport. Although the subpoena purported to be a subpoena ad
testificandum, it was accompanied by a duces tecum rider
that specified the materials Ajaj was ordered to produce. When Ajaj's counsel in
the passport fraud case inquired whether the subpoena really sought Ajaj's
testimony as well as the evidence listed in the rider, the government explained
that the subpoena sought only the specified evidence. Ajaj did not move to quash
the subpoena.
After Ajaj learned that the government was planning to
introduce the terrorist materials in the World Trade Center bombing trial, he
moved to suppress the materials held pursuant to the grand jury subpoena. Ajaj
argued that the subpoena was illegal since: (1) Ajaj could not have been under
investigation when the subpoena was issued because it was issued after the
completion of the passport fraud case but before the World Trade Center was
bombed; and (2) the subpoena was a subpoena ad testificandum, not
a subpoena duces tecum. Judge Duffy denied Ajaj's motion to
suppress, finding that the use of the subpoena was proper. Ajaj renews his claim
on appeal.
It is "improper for the government to use a grand jury
subpoena 'for the sole or dominant purpose of preparing for trial.'" United
States v. Sasso, 59 F.3d 341, 351 (2d Cir. 1995) (quoting United States
v. Leung, 40 F.3d 577, 581 (2d. Cir. 1994)). However, "[w]here there [is]
some proper dominant purpose for the postindictment subpoena . . . the
government is not barred from introducing evidence obtained thereby." Id.
at 351-52. A grand jury subpoena is presumed to have a proper purpose, and the
defendant bears the burden of showing that the grand jury has exceeded its legal
powers. See United States v. R. Enterprises, Inc., 498 U.S. 292,
300-01 (1991). A defendant must present "particularized proof" of an improper
purpose to overcome the presumption of propriety of the grand jury subpoena.
See United States v. Mechanik, 475 U.S. 66, 75 (1986).
Ajaj failed to present any proof that the government misused
the grand jury subpoena. He maintains that the subpoena had no legitimate
purpose because in December 1992, when the subpoena was issued, his passport
fraud prosecution was over and the World Trade Center had not yet been bombed.
He therefore posits that he could not have been under investigation when the
subpoena was issued and therefore that the sole purpose of the subpoena was to
circumvent Judge Raggi's order for the return of the materials.
The government presented evidence that demonstrated a proper
purpose for the grand jury subpoena. It consisted primarily of an affidavit from
the Assistant United States Attorney who prepared the subpoena, explaining that
the materials seized from Ajaj were used in a joint FBI-NYPD investigation of
terrorism. The affidavit further noted that the subpoena was not connected to
the Eastern District passport fraud case. This evidence established that the
subpoena had a proper purpose. See Sasso, 59 F.3d at 352.
While the government should not have ignored Judge Raggi's
order to return Ajaj's belongings or to explain its reasons for failing to do
so, any relief that Ajaj was entitled to seek would have been some sort of
remedial order directed to the entity that violated Judge Raggi's order - the
United States Attorney's Office for the Eastern District of New York. Ajaj did
not seek such an order. The subsequent grand jury proceeding in the Southern
District of New York was a wholly independent investigation into terrorist
activity. Such an investigation was clearly within the province of the Southern
District grand jury. See, e.g, Branzburg v. Hayes, 408 U.S.
665, 668 (1972) (grand jury can investigate "'merely on suspicion that the law
is being violated, or even because it wants to assure that is not'" (citation
omitted)). With respect to the Southern District investigation, Ajaj has not met
his burden of showing that the government's use of the grand jury was improper.
Accordingly, he has not overcome the presumption of regularity applicable to
grand jury proceedings. See Leung, 40 F.3d at 581.
Ajaj also argues that the subpoena was somehow illegal
because it purported to be a subpoena ad testificandum when it
actually was a subpoena duces tecum. Ajaj fails to explain why the
subpoena was invalid because of this technical error. A subpoena ad
testificandum may order a person to bring objects with him for the use of
the grand jury. See 2 Charles Alan Wright, Federal Practice and
Procedure § 274, at 150 (2d ed. 1982). On its face, the subpoena issued to
Ajaj appeared to request both his presence and the production of physical
evidence. Although it turned out that Ajaj's testimony was superfluous, the
subpoena was not improper because the grand jury requested production of Ajaj
personally in addition to the terrorist materials. See id. at
151.
Moreover, Ajaj suffered no prejudice as a result of the
mischaracterization of the subpoena. The rider made it clear that the subpoena
sought the terrorist materials Ajaj brought into the United States. Moreover,
when Ajaj's counsel inquired whether the subpoena sought testimony from Ajaj,
the government explained that it did not. Thus, the government's inadvertence
did not prejudice Ajaj, and was not grounds to suppress the evidence held
pursuant to the subpoena.
2. Abouhalima's Motion
Judge Duffy admitted some of the materials seized from Ajaj
into evidence against all the defendants. Abouhalima argues that the admission
of Ajaj's terrorist materials violated Federal Rule of Evidence 403, and his
rights under the First Amendment of the Constitution.
a. Rule 403
The trial judge admitted the following terrorist materials
seized from Ajaj into evidence against all the defendants: (1) a videotape of
the bombing of an American embassy which also provided instruction on how to
make explosives and timing devices; (2) Ajaj's handwritten notebooks on how to
make explosives (including urea nitrate) and improvised weapons; (3) a videotape
containing a chemistry lesson on manufacturing explosives; (4) manuals on
catalysts, detonators and other bomb ingredients; (5) a document entitled
"Facing the enemies of God terrorism is a religious duty and force is
necessary," which urged acts of terrorism against the enemies of Islam; and (6)
a book entitled "Rapid Destruction and Demolition," which described the
destruction of buildings and contained a formula for using explosives to
accomplish this end.
In addition, Judge Duffy admitted copies of: (1) "Facing the
enemies of God"; and (2) "Rapid Destruction and Demolition" that were recovered
from Abouhalima's residence. The copy of "Rapid Destruction and Demolition"
found in Abouhalima's residence bore his fingerprint on the page containing the
formula for destroying buildings with explosives. Abouhalima argues that Judge
Duffy should not have admitted these terrorist materials because they were
highly prejudicial and lacked probative value. He is incorrect.
Under Rule 403, relevant evidence may be excluded when its
probative value is "substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence." Fed. R.
Evid. 403. A district court is obviously in the best position to do the
balancing mandated by Rule 403. See, e.g., United States v.
Birney, 686 F.2d 102, 106 (2d Cir. 1982). We will second-guess a district
court "only if there is a clear showing that the court abused its discretion or
acted arbitrarily or irrationally." United States v. Valdez, 16 F.3d
1324, 1332 (2d Cir. 1994). To avoid acting arbitrarily, the district court must
make a "conscientious assessment" of whether unfair prejudice substantially
outweighs probative value. Birney, 686 F.2d at 106.
Although it does not bear directly on the charged elements
of a crime, evidence offered to prove motive is commonly admitted. See
id. at 106-07. In addition, evidence that provides background information
necessary to the jury's understanding of the nature of the conspiratorial
agreement properly is admitted "to furnish an explanation of the understanding
or intent with which certain acts were performed." United States v. Daly,
842 F.2d 1380, 1388 (2d Cir. 1988).
Where a defendant is a member of a conspiracy, all the
evidence admitted to prove that conspiracy, even evidence relating to acts
committed by co-defendants, is admissible against the defendant. See,
e.g., United States v. Cunningham, 723 F.2d 217, 230 (2d Cir.
1983).
The record amply demonstrates that Judge Duffy made a
"conscientious assessment" of the proffered evidence and properly determined
that unfair prejudice did not substantially outweigh the probative value of
these materials. See Birney, 686 F.2d at 106. Before admitting any
materials, Judge Duffy scrupulously reviewed each item and heard extensive
argument from counsel. Having heard both sides, Judge Duffy excluded a number of
the materials seized from Ajaj as unduly prejudicial. The materials that were
admitted established the existence of the conspiracy to bomb American targets
and demonstrated the defendants' intent and motivation to use violence to
protest American foreign policy in the Middle East.
For example, the documents seized from Ajaj provided
instruction on: (1) constructing bombs; (2) mixing explosives; and (3) using
bombs to destroy buildings. Specific pages of these materials contained formulae
for the same explosives that were used to construct the World Trade Center bomb,
and Ajaj's and Yousef's fingerprints were found on those pages. Moreover, traces
of those same explosives were found in the homes of, and on objects linked to,
Yousef, Abouhalima, Salameh and Ayyad. Thus, the terrorist materials provided
circumstantial proof of a connection among the conspirators and their
familiarity with bomb making and the use of explosives.
In addition, the copies of "Facing the enemies of God," and
"Rapid Destruction and Demolition," that were recovered from Abouhalima's
residence linked the conspirators. The copy of "Rapid Destruction and
Demolition" seized from Abouhalima bore his fingerprint on the page containing
the formula for destroying buildings with explosives. Under the circumstances,
the fact that Ajaj and Abouhalima both possessed the same documents was
probative of their relationship as co-conspirators.
The materials possessed by both Ajaj and Abouhalima bristled
with strong anti-American sentiment and advocated violence against targets in
the United States. These same themes were expressed in a letter attributed to
another co-conspirator, Ayyad, that was sent to the New York
Times in the aftermath of the bombing. The materials, in addition to
establishing a link between the co-conspirators, evidenced the conspiracy's
motive and intent to bomb targets in the United States. In addition, the
materials provided the jury with background and "an explanation of the
understanding or intent with which certain acts were performed." Daly,
842 F.2d at 1388.
Furthermore, the materials had probative value in light of
their similarity to the actual bombing. As Judge Duffy recognized, one videotape
admitted in evidence showed a man driving a truck into a building that was
flying an American flag. The building was then demolished in an explosion. The
videotape thus closely resembled the actual events at the World Trade Center and
provided further evidence of motive and intent.
The sulphurous anti-American sentiments expressed in the
terrorist materials no doubt threatened to prejudice the jury against the
defendants. However, Judge Duffy did not abuse his discretion by concluding that
the significant probative value of this evidence was not substantially
outweighed by the danger of unfair prejudice.
b. First Amendment
Abouhalima argues also that the admission of Ajaj's
terrorist materials violated Abouhalima's First Amendment rights. Ajaj's
possession of the terrorist materials, Abouhalima contends, was used as the
basis for an inference that Abouhalima and the other conspirators engaged in
criminal acts. It is difficult to comprehend this argument since it is beyond
cavil that "[t]he First Amendment . . . does not prohibit the evidentiary use of
speech to establish the elements of a crime or to prove motive or intent."
Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993). Neither Ajaj nor
Abouhalima was prosecuted for possessing or reading terrorist materials. The
materials seized from Ajaj were used appropriately to prove the existence of the
bombing conspiracy and its motive. Moreover, any prejudicial effect they might
have had was ameliorated by the trial court's instruction that mere possession
of the literature is not illegal and that the defendants' political beliefs were
not on trial.
3. Ayyad's Motion
Ayyad argues that admission of Ajaj's terrorist materials
violated Federal Rule of Evidence 801(d)(2)(E). This claim is meritless because
the materials were admissible for a non-hearsay purpose.
Federal Rule of Evidence 801(c) defines hearsay as "a
statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted." Rule
801(d)(2)(E) provides that, notwithstanding the definition in Rule 801(c), "a
statement by a coconspirator of a party during the course and in furtherance of
the conspiracy," is equally not hearsay. Obviously, if the proffered evidence is
not hearsay in the first place, under Rule 801(c), the various requirements of
Rule 801(d)(2)(E) need not be met. See Anderson v. United States,
417 U.S. 211, 219 (1974).
The terrorist materials seized from Ajaj discussed two
issues: (1) the desirability of attacking enemies of Islam; and (2) how to
produce and use explosives. However, the government introduced this evidence to
prove the state of mind of those who harbored these materials, relevant to
prove: (1) the existence of the bombing conspiracy; and (2) the conspirator's
intent and motives. See Tr. 7320-21.
"Where, as here, the statement is offered as circumstantial
evidence of [a defendant's] state of mind, it does not fall within the
definition given by Rule 801(c); because it was not offered to prove the truth
of the matter asserted." United States v. Detrich, 865 F.2d 17, 21 (2d
Cir. 1988); see United States v. Pedroza, 750 F.2d 187, 200 (2d
Cir. 1984). As proof of defendants' state of mind, Ajaj's terrorist materials
were not hearsay under Rule 801(c), and their failure to come within Rule
801(d)(2)(E) is of no consequence. See Anderson, 417 U.S. at
219.
B. Motion to Suppress Contents of the Storage
Shed
At trial, the government introduced homemade nitroglycerine
and large quantities of bomb making ingredients seized from a storage shed (the
"Shed"), at the Space Station storage facility in Jersey City (the "Space
Station"). Salameh argues that Judge Duffy should have suppressed this evidence.
Salameh is wrong.
On March 5, 1993, a Magistrate Judge in the District of New
Jersey issued a search warrant for the Shed. Probable cause for the warrant was
based upon an affidavit of FBI Special Agent Eric Pilker.
Before trial, Salameh moved to suppress the evidence from
the Shed on the ground that Pilker's affidavit did not establish probable cause
for the search. Salameh also requested a hearing to test alleged misstatements
in Pilker's affidavit. Judge Duffy denied the motion to suppress as well as the
requested hearing, finding that: (1) Salameh lacked standing to contest the
search; (2) there was probable cause for the search warrant; and (3) even if the
warrant was not supported by probable cause, the search was proper because it
was conducted in good faith reliance on the search warrant. Because we agree
that there was both probable cause and good faith, we need not and do not
address the standing argument.
1. Probable Cause
In deciding whether probable cause exists for a search
warrant, a judge must determine whether "there is a fair probability that
contraband or evidence of a crime will be found in a particular place."
Illinois v. Gates, 462 U.S. 213, 238 (1983). "[O]nly the probability, and
not the prima facie showing, of criminal activity is the standard of probable
cause." Id. at 235 (internal quotation marks and citation omitted). In
assessing the proof of probable cause, the government's affidavit in support of
the search warrant must be read as a whole, and construed realistically.
See id. at 230-31.
We accord "great deference" to a judge's determination that
probable cause exists, and we resolve any doubt about the existence of probable
cause in favor of upholding the warrant. See United States v.
Jakobetz, 955 F.2d 786, 803 (2d Cir. 1992). Our duty is "simply to ensure
that the magistrate had a 'substantial basis for . . . conclud[ing]' that
probable cause existed." Gates, 462 U.S. at 238-39 (citation omitted;
alterations in original).
Pilker's affidavit in support of the search warrant stated
that an explosion had occurred at the World Trade Center, and that an FBI
explosives expert had determined that it was caused by a bomb. The affidavit
also related that the expert knew from examining an auto part recovered at the
crime scene that the part belonged to whatever vehicle carried the bomb. Using
the part's vehicle identification number, investigators traced it to a yellow
Ford Econoline 350 van registered in Alabama to the Ryder Truck Rental Company
and leased by Mohammad Salameh from a rental office in Jersey City for a
one-week period beginning three days before the explosion.
Elsewhere in the affidavit, Pilker related that a Space
Station employee informed the FBI that storage shed number 4344 was under lease
to "Kamil Ibrahim." The employee told the FBI that on February 25, 1993, one day
before the bombing, he observed "Kamil Ibrahim," along with other males, making
numerous trips to the Shed using a yellow Ryder van. Moreover, the same Space
Station employee stated that on March 4, 1993, less than one week after the
bombing, he entered the Shed and observed containers marked "sulfuric acid,"
"nitric acid" and "urea." A forensic chemist at the Bureau of Alcohol, Tobacco
and Firearms informed the FBI that those three substances could be combined to
produce a powerful bomb.
Finally, the affidavit described that, when renting the
Ryder van, Salameh had given a telephone number that belonged to someone named
Jodie Hadas at 34 Kensington Avenue, Apt. 4, in Jersey City. When investigators
searched that apartment on March 4, 1993, they found tools, wiring and manuals
concerning antennae, circuitry and electromagnetic devices. A law enforcement
bomb technician advised the FBI that these items indicated that a bomb maker
lived in that apartment.
Cumulatively, this evidence provided ample probable cause to
believe that the Shed contained evidence of the World Trade Center
bombing.
2. Franks Hearing
Salameh argues that Pilker's affidavit contained recklessly
false statements regarding the alleged evidence of bomb making discovered at the
Kensington Avenue apartment. Salameh asserts that Judge Duffy should have
granted him a hearing under Franks v. Delaware, 438 U.S. 154 (1978), to
test the accuracy of Pilker's claims.
To be entitled to a Franks hearing, a defendant must
make a "substantial preliminary showing" that: (1) the claimed inaccuracies or
omissions are the result of the affiant's deliberate falsehood or reckless
disregard for the truth; and (2) the alleged falsehoods or omissions were
necessary to the judge's probable cause finding. See United States v.
Levasseur, 816 F.2d 37, 43 (2d Cir. 1987). If, after setting aside the
allegedly misleading statements or omissions, the affidavit, nonetheless,
presents sufficient information to support a finding of probable cause, the
district court need not conduct a Franks hearing. See
id.
In his affidavit, Pilker related that the Kensington Avenue
apartment contained evidence of a bomb maker. Salameh maintains that this
statement was false, and that Pilker was reckless in including it in his
affidavit.
In support of his claim of recklessness, Salameh proffered
the affidavit of Musab Yasin, an electrical engineering professor who claimed to
reside in the Kensington Avenue apartment. Yasin averred that the materials
discovered by the government were used in his electrical engineering studies. He
also said that he informed Pilker of this fact on two separate occasions, but
Pilker failed to include Yasin's benign explanation of the materials in the
affidavit in support of the search warrant.
The district judge did not err in denying Salameh a
Franks hearing because the allegedly false statements in Pilker's
affidavit were not necessary for a finding of probable cause. See
United States v. Trzaska, 111 F.3d 1019, 1027-28 (2d Cir. 1997). As
detailed above, there was a wealth of evidence presented in Pilker's affidavit
which raised a reasonable probability that the Shed contained evidence of the
World Trade Center bombing. Disregarding the allegedly false statements in
Pilker's affidavit, the other evidence presented by the government amply
supported a finding of probable cause. See United States v.
Marin-Buitrago, 734 F.2d 889, 895 (2d Cir. 1984).
3. Good Faith Reliance
Even assuming, arguendo, that probable cause was
lacking for the issuance of the search warrant, Judge Duffy properly declined to
suppress the evidence discovered in the Shed because the search of the Shed was
conducted in good faith reliance on the search warrant.
If a reviewing court determines that a search warrant was
not supported by probable cause, a motion to suppress will still be denied if
the court finds that the officers who conducted the search acted in good faith
reliance on a facially valid warrant. See United States v. Leon,
468 U.S. 897, 918-23 (1984). An officer's reliance on a warrant is not in good
faith when the application supporting the warrant is "'so lacking in indicia of
probable cause as to render official belief in [the existence of probable cause]
entirely unreasonable.'" Id. at 923 (quoting Brown v. Illinois,
422 U.S. 590, 610-11 (1975) (Powell, J., concurring in part)).
For the reasons explained above, the application for the
warrant presented ample indicia of probable cause. Thus, the agents' reliance on
the warrant in conducting the search of the Shed was reasonable and in good
faith.
II.
PROCEDURAL MOTIONS
A. Abouhalima -- Severance
Abouhalima argues that the district court deprived him of a
constitutionally fair trial by denying his pretrial motion for a severance.
Specifically, Abouhalima first claims that absent severance, he was harmed by
the admission and the subsequent "spillover" effect of "holy war" literature and
video tapes that were seized from Ajaj at Kennedy Airport in September 1992.
These materials included (1) a videotape of the bombing of the American Embassy,
which contained instructions regarding how to make explosives and timing devices
and how to construct a bomb; (2) Ajaj's manuals, detailing how to prepare
explosives, including urea nitrate, and improvised weapons; (3) a videotape
containing a chemistry lesson on manufacturing explosives; (4) additional
manuals on catalysts, detonators and other bomb ingredients; (5) a document
entitled "Facing the enemies of God -- [T]errorism is a [R]eligious [D]uty and
[F]orce is [N]ecessary," which urged acts of terrorism against the enemies of
Islam; and (6) a book entitled "Rapid Destruction and Demolition," which
described the destruction of buildings and contained a formula for using
explosives to accomplish this end. Copies of publications (5) and (6) above were
recovered from Abouhalima's residence and admitted into evidence. Although
identical, Abouhalima does not dispute the admissibility of these items, but
only those items seized from Ajaj.
Next, Abouhalima argues that through the joinder, he was
prejudiced by Salameh's closing argument, where Salameh purportedly asserted a
defense antagonistic to his own. In this regard, as part of his defense,
Abouhalima refused to concede either that a bomb had caused the World Trade
Center explosion, or that he had any association with Yousef. Salameh, on the
other hand, conceded not only the existence of a bomb, but argued that he was an
unwitting dupe of Yousef, who had masterminded the bombing. Because the
government had characterized Yousef as Abouhalima's close associate, Abouhalima
avers that Salameh's summation undermined his defense of not knowingly
participating in the conspiracy.
We find no basis for reversal. "There is a preference in the
federal system for joint trials of defendants who are indicted together."
Zafiro v. United States, 506 U.S. 534, 537 (1993); United States v.
Hernandez, 85 F.3d 1023, 1029 (2d Cir. 1996). This preference is
particularly strong where, as here, the defendants are alleged to have
participated in a common plan or scheme. See Fed. R. Crim. P. 8(b);
United States v. Cardascia, 951 F.2d 474, 482 (2d Cir. 1991); United
States v. Turoff, 853 F.2d 1037, 1042 (2d Cir. 1988). "It would impair both
the efficiency and the fairness of the criminal justice system to require ...
that prosecutors bring separate proceedings, presenting the same evidence again
and again, requiring victims and witnesses to repeat the inconvenience (and
sometimes trauma) of testifying, and randomly favoring the last-tried defendants
who have the advantage of knowing the prosecution's case beforehand."
Richardson v. Marsh, 481 U.S. 200, 210 (1987).
Whether to grant or deny a severance motion is "committed to
the sound discretion of the trial judge." United States v. Casamento, 887
F.2d 1141, 1149 (2d Cir. 1989); see United States v. Torres, 901
F.2d 205, 230 (2d Cir. 1990). The district court's exercise of that discretion
is "virtually unreviewable." United States v. Lasanta, 978 F.2d 1300,
1306 (2d Cir. 1992) (citation and internal quotation marks omitted).
Accordingly, a district court's denial of a severance motion
under Federal Rule of Criminal Procedure 14 will be reversed "only if a
defendant can `show prejudice so severe that his conviction constituted a
miscarriage of justice, and that the denial of his motion constituted an abuse
of discretion.'" Hernandez, 85 F.3d at 1029 (quoting United States v.
Rosa, 11 F.3d 315, 341 (2d Cir. 1993)). To satisfy this "extremely difficult
burden, of showing an abuse of discretion, an appellant must demonstrate that
the denial of the motion caused substantial prejudice," Casamento, 887
F.2d at 1149-50 (internal quotation marks and citations omitted), that is,
"prejudice so great as to deny him a fair trial," Cardascia, 951 F.2d at
482. "If the denial of the motion causes some prejudice, but less than
substantial prejudice, we are not apt to reverse, since, by and large, joinder
promotes judicial efficiency." Casamento, 887 F.2d at 1150.
1. Ajaj's Holy War Materials
The admission of Ajaj's "holy war" materials did not result
in prejudicial spillover as to Abouhalima. Therefore, the district court did not
err in denying severance. A defendant's claim that he was prejudiced by the
admission of evidence at a joint conspiracy trial is insupportable when the
evidence would have been admissible against him in a separate trial alone as a
member of the conspiracy. See Rosa, 11 F.3d at 341 (such evidence
"is neither spillover nor prejudicial"); United States v. Cunningham, 723
F.2d 217, 230 (2d Cir. 1983). "Prejudice" occurs in joint trials when proof
inadmissible against a defendant becomes a part of his trial solely due to the
presence of co-defendants as to whom its admission is proper. See,
e.g., United States v. Cervone, 907 F.2d 332, 341-42 (2d Cir.
1990). This is an unlikely occurrence when all the defendants are charged under
the same conspiracy count. See United States v. DiNome, 954 F.2d
839, 843-44 (2d Cir. 1992).
In the present case, Ajaj and Abouhalima were alleged to
have participated in a common plan or scheme and were tried under the same
conspiracy count. As we have already discussed in connection with co-appellant
Ayyad, the materials seized from Ajaj at Kennedy Airport were properly admitted
as background evidence to establish the nature and scope of the conspiracy and
to establish the motive and intent of the conspirators, namely, a desire to use
violence to effect change in American foreign policy in the Middle East.
See United States v. Daly, 842 F.2d 1380, 1387 (2d Cir. 1988)
("Background evidence may be admitted to show, for example, the circumstances
surrounding the events or to furnish an explanation of the understanding or
intent with which certain acts were performed."). Additionally, the materials
were admissible to link Abouhalima to the conspiracy, as two of the terrorist
publications seized from Ajaj were identical to the publications found in
Abouhalima's apartment. Because each of the items would have been admitted
against Abouhalima had he been tried alone, they were properly admitted against
Abouhalima in the joint trial and there is no prejudicial "spillover."
Consequently, Abouhalima has not shown that the district court erred in denying
his pretrial motion for a severance, let alone an abuse of discretion and a
miscarriage of justice.
2. Salameh's Summation
We find no prejudice to Abouhalima arising from Salameh's
summation. "`[M]utually antagonistic' or `irreconcilable' defenses may be so
prejudicial in some circumstances as to mandate severance." Zafiro, 506
U.S. at 538. In order to make a showing of "mutually antagonistic" or
"irreconcilable defenses," the defendant must make a factual demonstration that
"acceptance of one party's defense would tend to preclude the acquittal of [the]
other." United States v. Smith, 788 F.2d 663, 668 (10th Cir. 1986)
(internal quotation marks and citation omitted); United States v. Keck,
773 F.2d 759, 765 (7th Cir. 1985). However, "[m]utually antagonistic defenses
are not prejudicial per se. Moreover, Rule 14 does not require
severance even if prejudice is shown; rather, it leaves the tailoring of the
relief to be granted, if any, to the district court's sound discretion."
Zafiro, 506 U.S. at 538-39; see, e.g., id. at 540-41
(where two co-defendants both claim they are innocent and each accuses the other
of the crime, district court did not err in denying motion for severance). "The
risk of prejudice will vary with the facts in each case ... [and w]hen the risk
of prejudice is high, a district court is more likely to determine that separate
trials are necessary, but, as [the Supreme Court] indicated in Richardson v.
Marsh, less drastic measures, such as limiting instructions, often will
suffice to cure any risk of prejudice." Id. at 539. "`[J]uries are
presumed to follow their instructions.'" Id. at 540 (citation
omitted).
Throughout the trial in this case, all four defendants
challenged the government's case without attempting to accuse one another.
Unlike Abouhalima, during summation Salameh abandoned his trial strategy of
disputing that a bomb had caused the explosion and argued that he was nothing
more that an unwitting dupe of Yousef, who had masterminded the bombing. While
the defense asserted by Salameh was, in the end, inconsistent with Abouhalima's
defense, at no time did Salameh argue or suggest that Abouhalima was involved in
the bombing, or directly contradict Abouhalima's defense strategy. Salameh and
Abouhalima both claimed to be innocent of the charges and neither's claim of
innocence required the jury to find the other guilty.
Consequently, because there was nothing directly
antagonistic between the two defense theories so as to create mutually
antagonistic or irreconcilable defenses, we perceive no ground for reversal
based on the court's denial of severance. Furthermore, any possible prejudice
was eliminated by the district court's repeated admonitions to the jury that
each defendant's guilt had to be separately and individually considered.
See, e.g., Hernandez, 85 F.3d at 1029-30 (rejecting claim
of prejudicial spillover where "the district court instructed the jury that it
was required to consider the evidence against each defendant individually for
each count"); United States v. Losada, 674 F.2d 167, 171 (2d Cir. 1982)
(same).
Moreover, to the extent that Salameh's summation may have
undermined Abouhalima's defense by indirectly linking him to Yousef, any
possible prejudice was cured by the district court's jury instruction that
"[m]ere association with other people that you found are members of the
conspiracy is not enough for you to find a person to be a member ... [even] a
person who has knowledge of a conspiracy and all of its ramifications and does
nothing about it is not a co-conspirator.... [It's] got to be an intentional
joining of the conspiracy." In light of this instruction, we find no
error.
B. Abouhalima -- Involuntariness of Statement
Abouhalima made two incriminating remarks during his
post-arrest interview. Specifically, shortly after being taken into United
States' custody, Abouhalima was informed that he was under arrest for his
participation in the World Trade Center bombing. Once FBI agents advised him of
his constitutional rights, they interviewed him about the apartment at 40
Pamrapo. During the interview, Abouhalima asked an officer whether he "knew an
individual by the name of "Rashid." Yousef's nickname was "Rashed." Abouhalima
also corrected an FBI agent's pronunciation of "Pamrapo." At trial, Abouhalima
requested a suppression hearing directly before these remarks were admitted into
evidence. The court, however, found that such a hearing was unnecessary. After
introducing these statements into evidence, the government used these statements
to assert that Abouhalima had linked the questioning about 40 Pamrapo to the
World Trade Center bombing and to Yousef.
Abouhalima now argues that we should direct the district
court on remand to reconsider Abouhalima's motion to suppress his post-arrest
remarks. Specifically, Abouhalima asserts that his comments were given
involuntarily and without a valid Miranda waiver because they followed
ten days of incarceration and torture in Egypt. Accordingly, Abouhalima argues
that the court's failure to hold a suppression hearing violated his Fifth and
Sixth Amendment rights.
Under the circumstances, we find no basis for a suppression
hearing. "[Courts are not required to] divine a defendant's motivation for
speaking or acting as he did [when] there [is] no claim that governmental
conduct coerced his decision." Colorado v. Connelly, 479 U.S. 157, 165-66
(1986). "A diminished mental state is only relevant to the voluntariness inquiry
if it made mental or physical coercion by the police more effective." United
States v. Chrismon, 965 F.2d 1465, 1469 (7th Cir. 1992).
In the present case, while it is reasonable that Egyptian
incarceration and torture, if true, would likely weaken one's mental state,
one's mental state does not become part of the calculus for the suppression of
evidence unless there is an allegation that agents of the United States engaged
in some type of coercion. Because Abouhalima does not contend that federal
agents either mentally or physically coerced his remarks during that
interrogation, there is no basis for inquiry into a possible constitutional
violation. "Only if we were to establish a brand new constitutional right -- the
right of a criminal defendant to confess to his crime only when totally rational
and properly motivated -- could respondent's present claim be sustained."
Connelly, 479 U.S. at 166.
C. Ayyad -- Failure to Grant Funds for Experts
Ayyad argues that the district court unreasonably interfered
with his efforts to secure expert testimony and consultation by authorizing only
a portion of the Criminal Justice Act (CJA) funds that he requested.
Specifically, on January 28, 1994, during the fourth month of the trial, Ayyad,
who was represented by retained counsel, applied for $35,000 in CJA funds for
five expert witnesses concerning DNA evidence, explosives, computers,
linguistics and culture. The district court initially responded by authorizing
$1,000 for the DNA expert and $1,000 for the explosives expert, but denied
Ayyad's request to retain the computer expert, linguist and an expert on culture
(sociologist). Ayyad asserts that the district court's response "left him
unprepared and unable to test the government's direct case ... requir[ing]
reversal."
The government responds that just three days after its
initial ruling, the court reconsidered and granted Ayyad's application in full.
Accordingly, the government avers that Ayyad's argument is factually incorrect
and does not support a reversal. We agree.
The Criminal Justice Act of 1964 provides in pertinent part:
"Counsel for a person who is financially unable to obtain investigative, expert,
or other services necessary for adequate representation may request them in an
ex parte application." 18 U.S.C. §3006A(e)(1). The statute requires the district
court to authorize these funds when a defense attorney "makes a reasonable
request in circumstances in which he would independently engage such services
[if his client was able to pay for them]." United States v. Durant, 545
F.2d 823, 827 (2d Cir. 1976) (citing United States v. Theriault, 440 F.2d
713, 717 (5th Cir. 1971) (Wisdom, J., concurring)); see United
States v. Oliver, 626 F.2d 254, 259 (2d Cir. 1980). While the district judge
should entertain such requests with a liberal attitude, he is nevertheless
"obligated to exercise his discretion in determining whether such services are
necessary." Oliver, 626 F.2d at 260. Services "necessary for an adequate
defense" include "preparation for cross-examination of a government expert as
well as presentation of an expert defense witness." Id.; see
id. at 828 (district court commits reversible error when it denies CJA
funds for fingerprint expert, where fingerprint evidence was likely to be
"pivotal").
In this case, we need not decide whether the district court
erred in initially declining to grant Ayyad's application in full. Because the
district court timely reconsidered that order and granted Ayyad the full $35,000
in CJA funds, we perceive no prejudice. Moreover, we observe that during the
three-week interval between the district court's authorization of the funds and
the time that Ayyad rested before the jury, he called no witnesses and never
requested a continuance to consult with his experts. Consequently, there is no
basis for reversal.
D. Ajaj -- Eastern District Plea Agreement
Ajaj argues that his prosecution under the instant
indictment is barred by the express terms of his plea agreement regarding the
passport fraud charges in the Eastern District of New York ("Eastern District
plea agreement"). He claims that the United States Attorney's Office for the
Eastern District of New York ("Eastern District prosecutor's office") improperly
passed along work to the United States Attorney's Office for the Southern
District of New York ("Southern District prosecutor's office") to circumvent a
restriction on its own ability to prosecute Ajaj on charges stemming from Ajaj's
role in the World Trade Center bombing. For the reasons that follow, we conclude
that Ajaj's arguments are meritless.
Following his arrest and detention at Kennedy Airport, Ajaj
was charged in the Eastern District of New York with knowingly using a false
passport, 18 U.S.C. §1543 (Count One), and using the passport of another person,
18 U.S.C. §1544 (Count Two) ("Eastern District indictment"). On October 6, 1992,
Ajaj, with the assistance of his then-counsel, Douglas Morris, executed a
written plea agreement with the Eastern District prosecutor's office. Ajaj
agreed to plead guilty to Count Two in return for the Eastern District
prosecutor's promise to move to dismiss Count One at sentencing and not oppose a
two-level reduction under the Sentencing Guidelines for Ajaj's acceptance of
responsibility. Paragraph 4 of that plea agreement provided that "[t]his
agreement is limited to the United States Attorney's Office for the Eastern
District of New York and cannot bind other federal, state or local prosecuting
authorities."
On October 6, 1992, Ajaj pled guilty to Count Two of the
Eastern District indictment before United States District Judge Raggi. During
the course of the allocution, Judge Raggi asked the parties whether they had
agreed to any additional terms to supplement the written plea agreement.
Attorney Morris, counsel for Ajaj, responded:
There's also an agreement that the Government
will not bring any charges arising out of Mr. Ajaj's entry into the United
States on September 1st, including any false statement charge, and it will not
bring any charges arising from any thing or document that Mr. Ajaj was carrying
with him on that date.
(emphasis added). Following Attorney Morris' articulation of
this supplementary oral agreement, the Eastern District prosecutor agreed,
stating "[t]hat's correct, your Honor." Judge Raggi, to ascertain whether Ajaj
understood the agreement in its entirety, questioned Ajaj and paraphrased
Attorney Morris' articulation of the oral agreement. Judge Raggi stated:
THE COURT: Now, the lawyers tell me that the
agreement represents all of the promises and agreements between you and the
Government, except that the Government also promises that it's
not going to bring any other charges against you relating to
your conduct on September 1st.
The question I want to put to you, now, is do you
know of any other promises [or] agreements made by you or the Government as a
part of this decision to plead guilty?
Is there anything else?
THE DEFENDANT: No.
(emphasis added).
Prior to trial under the instant indictment filed in the
Southern District of New York ("Southern District indictment"), Ajaj moved to
dismiss the indictment, arguing that the prosecution was barred by the terms of
the Eastern District plea agreement. Specifically, Ajaj argued that under the
terms of the oral supplement to that agreement, "the Government," which included
the Southern District prosecutor's office, was barred from prosecuting Ajaj on
charges "arising from" and "relating to" his September 1 entry into the United
States and the terrorist materials in his possession. Ajaj argued that in
contravention of that agreement, two overt acts charged in Count One of the
Southern District indictment stated:
a. On or about September 1, 1992, AHMAD MOHAMMAD
AJAJ, using an airline ticket issued in the name of "Khurram Khan," and RAMZI
AHMED YOUSEF, using an airline ticket issued in the name of "Azan Muhammad,"
traveled together from Pakistan to John F. Kennedy International Airport, in
Queens County, New York ("Kennedy Airport").
b. On or about September 1, 1992, AHMAD MOHAMMAD AJAJ
transported from Pakistan to Kennedy Airport, manuals and other materials
containing, among other things, instructions on the construction and use of
explosive devices, including improvised explosive devices using urea and nitric
acid and nitroglycerine.
The government, in opposition to Ajaj's motion, argued that
the parties to the Eastern District plea agreement never contemplated that the
plea agreement would bar the prosecution of Ajaj for terrorist-related
activities. According to the government, the parties had entered into the
supplementary oral agreement to address Ajaj's concern that (1) he had made
false statements to INS officials on September 1, 1992; (2) the government would
bring additional fraud-related charges against Ajaj based on his possession of
false identification documents; and (3) the possession of terrorist materials
themselves might constitute a crime.
On September 13, 1993, the district court denied Ajaj's
motion, concluding that "the written portion of the plea bargain specifically
limited the [plea agreement] to the United States Attorney's Office for the
Eastern District of New York. It is unreasonable to believe that anyone,
including Ajaj, believed that the addendum announced in open court by his own
attorney could bind all levels of government within the United States.... Under
the circumstances leading up to Ajaj's guilty plea, the only reasonable
expectation Ajaj could have was that he would not be further prosecuted by the
United States Attorney in the Eastern District of New York." We agree.
It is well settled that a prosecutor's promises made in
return for a defendant's guilty plea must be fulfilled. See Mabry v.
Johnson, 467 U.S. 504, 509 (1984) ("[W]hen the prosecution breaches its
promise with respect to an executed plea agreement, the defendant pleads guilty
on a false premise, and hence his conviction cannot stand."); Santobello v.
New York, 404 U.S. 257, 262 (1971). When the express terms of a plea
agreement set forth promises by "the Government," we have held that the "plea
agreement binds only the office of the United States Attorney for the district
in which the plea is entered unless it affirmatively appears that the agreement
contemplates a broader restriction," United States v. Annabi, 771 F.2d
670, 672 (2d Cir. 1985) (per curiam), or unless "there [is] evidence to show
that [a prosecutor] [i]s attempting to evade its own obligations [under the plea
agreement] by transferring a prosecution" to another office, United States v.
Alessi, 544 F.2d 1139, 1154 (2d Cir. 1976); see also United
States v. DiNapoli, 817 F.2d 978, 979 (2d Cir. 1987) (per curiam); United
States v. Papa, 533 F.2d 815, 825 (2d Cir. 1976). The mere use of the term
"`government' in the plea agreement does not create an affirmative appearance
that the agreement contemplated barring districts" other than the particular
district entering into the agreement. United States v. Laskow, 688 F.
Supp. 851, 853 (E.D.N.Y.), aff'd, 867 F.2d 1425 (2d Cir. 1988).
Here, Ajaj presents no evidence that the parties to the
Eastern District plea agreement contemplated that it would bar the prosecution
of Ajaj in any district other than the Eastern District. Indeed, the explicit
terms of the Eastern District plea agreement expressly limited the plea
agreement to the Eastern District of New York. Moreover, assuming that the plea
agreement would bar the Eastern District prosecutor's office from prosecuting
Ajaj for crimes arising from the World Trade Center bombing, Ajaj presents no
evidence that the Eastern District prosecutor's office attempted to circumvent a
restriction on its authority to prosecute by transferring its work to the
Southern District prosecutor's office. The Southern District prosecutor's office
independently investigated criminal offenses arising from the World Trade Center
bombing and filed an indictment in the Southern District charging Ajaj with
crimes that were distinct from the passport fraud charges in the Eastern
District. We therefore affirm the district court's denial of Ajaj's
motion.
III.
JURY SELECTION
Abouhalima maintains that he was denied a fair trial because
Judge Duffy, during voir dire, failed to ask sufficiently probing
questions regarding the jury panel's bias against Muslims, Arabs and Islamic
Fundamentalism. Abouhalima argues that, aside from uncovering bias, a more
extensive voir dire would have helped the defendants exercise
their peremptory challenges more effectively. Abouhalima adds that the judge
should have asked questions about Ajaj's terrorist materials during voir
dire. Because the record shows that Judge Duffy conducted a proper and
searching voir dire, we disagree.
Before trial, the parties submitted proposed voir
dire questions. Abouhalima's counsel submitted a proposed written
questionnaire with 79 questions soliciting the prospective jurors' views about
"Islam, Muslims and Arabs." However, Judge Duffy declined to use a written
questionnaire and instead conducted jury selection in three stages.
In the first stage, potential jurors were sent to the
courtroom in groups of 50. The judge explained the charges in the Indictment,
read a list of names and places that might be mentioned during the trial and
entertained petitions from those who sought to be excused from jury service.
Judge Duffy eliminated anyone who expressed bias against the defendants or
hesitancy about serving on the jury. After this stage, approximately 60 out of
150 possible jurors remained.
In the second stage of jury selection, Judge Duffy randomly
placed jurors in five groups of twelve. Each group was brought separately into
open court where Judge Duffy asked a series of questions, including: (1) "If you
had to describe your religious views, how would you do it?"; (2) "Have you ever
had an incident in your life that would make it difficult to judge another
person because of their race or creed or color or national origin or anything
like that?"; (3) "Have you ever moved out of an area because you were disturbed
that the area was changing?"; and (4) "Do you think that you could be fair and
impartial in a case like this?" Again, jurors who expressed bias or difficulty
assessing the case impartially were excused.
In the third stage of jury selection, the judge questioned
each remaining venire person privately in the jury room, with all counsel
present. Before beginning the individual questioning, Judge Duffy emphasized
that jurors had to be "totally fair and impartial" and base their decisions
solely on the evidence. Judge Duffy asked each venire person whether he or she:
(1) had ever traveled to the Middle East; (2) had any feelings about Israel; (3)
would be affected in any way by the fact that the four defendants were Muslims;
(4) had any friends who were Muslims; (5) had any business dealings with
Muslims; and (6) could be fair and impartial in this case. Judge Duffy also
asked each person follow-up questions when appropriate, to further assess his or
her ability to be fair and impartial. At the end of the third stage of
voir dire, the judge entertained counsel's challenges for
cause.
Finally, before the parties exercised their peremptory
challenges, Judge Duffy again asked each venire person whether he or she could
be fair and impartial and whether he or she was willing to serve. Judge Duffy
explained that if the answer to either of these last two questions was "no," he
could excuse the venire person without further inquiry. After the jurors
answered these final questions, the parties exercised their peremptory
challenges.
"The conduct of the voir dire is entrusted to
the broad discretion of the trial judge . . . and an appellate court will not
interfere with the manner in which it has been conducted absent a clear abuse of
discretion." United States v. Barton, 647 F.2d 224, 230 (2d Cir. 1981);
see Rosales-Lopez v. United States, 451 U.S. 182, 189 (1981). "[A]
trial judge has broad discretion whether to pose a defendant's requested
voir dire questions." United States v. Kyles, 40 F.3d 519,
524 (2d Cir. 1994). Inquiry as to racial or ethnic prejudice must be made when
"the circumstances of the case indicate that there is a reasonable possibility
that racial or ethnic prejudice might have influenced the jury."
Rosales-Lopez, 451 U.S. at 191. However, "the trial court retains great
latitude in deciding what questions should be asked on voir dire"
to uncover racial or ethnic bias. Mu'Min v. Virginia, 500 U.S. 415, 424
(1991); see United States v. Taylor, 92 F.3d 1313, 1324 (2d Cir.
1996), cert. denied, 117 S. Ct. 771 (1997).
Judge Duffy did not abuse his discretion in conducting jury
selection. Although he chose not to use each of Abouhalima's 79 proposed
questions verbatim, Judge Duffy's inquiry as to religious, ethnic or cultural
bias was proper and thorough. Furthermore, despite Abouhalima's claims, it was
within the judge's sound discretion not to question potential jurors about the
terrorist materials seized from Ajaj at Kennedy Airport, particularly
remembering that none of the defendants submitted proposed questions on this
issue. Finally, the fact that additional questions, such as those Abouhalima
submitted regarding Islamic Fundamentalism, might have aided the defendants in
their peremptory challenges does not render Judge Duffy's voir
dire defective. See Mu'Min, 500 U.S. at 425-26.
IV.
EVIDENTIARY RULINGS
A. Admission of Evidence Regarding Bombing
Victims
At trial, the government presented testimony from several
victims of the bombing, rescue workers who aided the victims, and a medical
examiner who examined some of the fatalities from the attack. In addition, the
government introduced photographs of several victims killed in the bombing.
Salameh and Abouhalima urge that the trial court should have excluded this
evidence under Federal Rule of Evidence 403.
During the first four days of the trial, the government
presented a number of witnesses to describe what happened before, during and
after the bombing. In addition to describing their personal experiences as a
result of the attack, several witnesses recounted observing the panic and
suffering of other victims. Indeed, one such witness broke down in tears while
testifying.
The government also introduced thirteen photographs of the
six people killed in the bombing. Four of the photographs were facial close-ups
of the bombing victims, six depicted the position of one of the victims at
death, one was a close-up of an injury to a victim's shoulder, and two showed
victims' bodies as they lay in stretchers. One of the victims shown on a
stretcher was clearly pregnant. The photographs are graphic depictions of the
corpses. Undeniably, they are disturbing.
After the photographs were introduced, a medical examiner
testified that in her opinion, the victims were killed by "blunt impact trauma"
caused by objects traveling at great speed. The medical examiner used the photos
of the victims to illustrate injuries consistent with her opinion.
The defendants protest that the evidence relating to the
victims was unfairly prejudicial. As explained above, Rule 403 requires the
district court to exclude relevant evidence if its probative value is
substantially outweighed by the danger of unfair prejudice. See Fed. R.
Evid. 403. A district judge's Rule 403 analysis is reversible error only when it
is a clear abuse of discretion. See Valdez, 16 F.3d at 1332.
1. Probative Value
To prove the charges in the indictment, the government had
to demonstrate that the World Trade Center bombing caused death and personal
injury. Thus, the government suggests that the victim testimony and photographs
had substantial probative value in proving the charges against the defendants.
Salameh and Abouhalima point out that they offered to stipulate that the
explosion in the World Trade Center caused injury and death. They maintain that
their proffered stipulation eliminated any probative value that the victim
testimony and photographs otherwise might have had.
The Supreme Court recently has reaffirmed that "a criminal
defendant may not stipulate or admit his way out of the full evidentiary force
of the case as the government chooses to present it." Old Chief v. United
States, 117 S. Ct. 644, 653 (1997) (limiting exception to this rule to cases
where defendant offers to stipulate to prior felony conviction); see
United States v. Gilliam, 994 F.2d 97, 101 (2d Cir. 1993). "[A] piece of
evidence may address any number of separate elements, striking hard because it
shows so much at once." Old Chief, 117 S. Ct. at 653.
The evidence regarding the victims was probative of the
nature and location of the explosion that killed the victims, which the
defendants disputed at trial. Government experts opined that the devastation of
the World Trade Center was wrought by a bomb hidden in a van parked in the B-2
level of the World Trade Center. The defendants vigorously contested this
theory. The testimony of the victims supported the government's experts' version
of events. Moreover, the photographs of the victims provided corroboration for
the expert witnesses' conclusions regarding the cause of the blast and the
resulting casualties and damage. Thus, the testimony and photographs of the
victims had substantial probative value, notwithstanding the defendants' offer
to stipulate to death and injury. See United States v. Gantzer,
810 F.2d 349, 351 (2d Cir. 1987).
2. Danger of Unfair Prejudice
There is no doubt that the testimony and photographs of the
victims were shocking, and a significant amount of such evidence was admitted.
Nevertheless, as explained above, the evidence had substantial probative value.
Probative evidence is not inadmissible solely because it has a tendency to upset
or disturb the trier of fact. See Kuntzelman v. Black, 774 F.2d
291, 292 (8th Cir. 1985); United States v. Brady, 579 F.2d 1121, 1129
(9th Cir. 1978).
Judge Duffy weighed the prejudicial effect of the evidence
and concluded that it did not substantially outweigh its probative value. His
decision was not an abuse of discretion. See Valdez, 16 F.3d at
1332.
B. Admission of Evidence Regarding Nosair
1. Photographs of Salameh and Nosair
Salameh insists that the trial judge violated Federal Rule
of Evidence 404(a)(1) by admitting photographs of Salameh with El-Sayyid Nosair,
a reputed political terrorist convicted of murdering an Israeli rabbi.
On March 4, 1993, FBI agents recovered Salameh's briefcase
from Yasin's Jersey City apartment. The briefcase contained a number of
photographs, including: (1) a photograph of Salameh, Nosair and Mohammed Abdul
Hamed, the resident of the apartment where Abouhalima's refrigerator (which was
used to store bomb making materials) was later discovered; (2) a photograph of
Salameh, Nosair and Ayyad; and (3) several photographs of Salameh and Nosair.
At trial, the government introduced all the pictures
pursuant to a stipulation between counsel to admit the entire contents of
Salameh's briefcase. No evidence was presented as to who Nosair was, what
allegedly he had done or that he was in prison. Nosair's name was, however,
mentioned, without further amplification, when he was identified in the
photographs.
Generally, evidence of a defendant's bad character is
inadmissible to prove action in conformity
therewith. See Fed. R. Evid. 404(a). Evidence that tends to prove
a character trait of a defendant is admissible if it is offered for another,
proper purpose. See Hynes v. Coughlin, 79 F.3d 285, 290 (2d Cir.
1996) (discussing Rule 404(b)). Salameh argues that the photographs of Nosair
were introduced solely to prove that he had a propensity for terrorist acts and
that he acted in conformity with that propensity by conspiring to bomb the World
Trade Center. His argument has little merit.
The government presented the photographs to: (1) establish
the association of various members of the charged conspiracy; and (2) link
members of the conspiracy to Abouhalima's refrigerator, which was found in
Hamed's apartment.
The photograph of Salameh, Nosair and Ayyad demonstrated the
relationship between Salameh and Ayyad. As proof of the association between two
conspirators, this photograph was probative of the existence of the
conspiracy.
The photograph of Salameh, Nosair and Hamed established a
connection between Abouhalima's refrigerator and the conspiracy. The government
argued that the conspirators used Abouhalima's refrigerator to store bomb making
ingredients, and then moved the refrigerator to Hamed's apartment to cover their
trail. The defendants disputed any connection to the refrigerator found in
Hamed's apartment. The photo of Salameh and Hamed linked the two men, and
circumstantially connected Salameh and the conspiracy to the refrigerator found
in Hamed's apartment.
Salameh's argument also fails because the photographs were
not evidence of Salameh's character. Salameh proposes that the jury was asked to
infer from the photographs that he was a terrorist because he associated with
Nosair. However, no evidence was presented at trial regarding Nosair's terrorist
activities. Salameh posits that the jury would have recognized Nosair's name,
recalled that he was accused of terrorist acts, and imputed his terrorist
activities to Salameh. This is sheer fantasy.
2. Admission of Abouhalima's Contacts with Nosair
Abouhalima contends that Judge Duffy erroneously admitted a visitor's log
indicating that Abouhalima visited Nosair in prison. Abouhalima appears to claim
that the visitor's log was unfairly prejudicial and possessed no probative
value. Abouhalima's argument is contradicted by the record.
At trial, the government introduced phone records which
showed that Abouhalima and his co-conspirators used Abouhalima's calling card to
contact each other and to order various chemicals and explosives. Abouhalima
maintained that his calling card had been stolen and that an unauthorized user
made the calls. In support of this claim, Abouhalima pointed out that he twice
notified the phone company that his card was being fraudulently used, first on
February 8, 1993, and again on the day of the bombing, February 26, 1993.
To rebut Abouhalima's claim that he lost the calling card,
the government introduced evidence that a call was made with Abouhalima's
calling card on February 7, 1993, from the Attica Correctional Facility's
Visitor's Center. The government also introduced the visitor's log from the
Attica Visitor's Center, which showed that Abouhalima visited Nosair on February
7, 1993. Abouhalima was Nosair's sole visitor that day.
The visitor's log was properly admitted. It tended to
disprove Abouhalima's claim that his calling card was stolen. See Fed. R.
Evid. 401 (evidence is relevant if it makes any fact of consequence less
probable). The probative value of this evidence easily outweighed any possible
unfair prejudice. See Fed. R. Evid. 403. This is especially true when it
is recalled that Nosair was never identified as a terrorist.
C. Admission of Identification
Both Salameh and Abouhalima challenge the admission of
pretrial and in-court identification evidence after a witness incorrectly
identified two jurors as Salameh and Abouhalima. Specifically, Salameh and
Abouhalima contend that it was improper to allow the government to introduce the
bewildered witness's pretrial identification of Salameh and Abouhalima and his
subsequent, accurate in-court identification. This is one of the more compelling
arguments.
On the morning of the bombing, Willie Hernandez Moosh was
working as a gas station attendant in Jersey City. At trial, Moosh testified
through a Spanish interpreter. He said that between 3:00 and 4:00 a.m., on
February 26, 1993, a yellow Ryder van and a navy blue Lincoln Continental
entered Moosh's gas station together. Moosh described the passenger of the Ryder
van as having a "horse face" and black hair, and the driver of the Lincoln as a
husky, white man with orange colored hair, freckles and a light beard. Moosh
said that the two men told him to fill up their vehicles with gas.
Moosh stated that, after he filled up the tanks, the driver
of the Lincoln paid for both vehicles. Moosh recounted that the two vehicles
began to drive away but stopped when a police car happened to drive by the
station. At that point, the passenger of the Ryder van got out, raised the hood
of the van and asked Moosh for some water. Moosh fetched the water, but he
remembered that the water was never used.
At trial, Moosh identified a photograph of Yousef as the
"horse face" passenger in the Ryder van. The government then asked Moosh if he
saw the driver of the Lincoln in the courtroom, and Moosh stepped down from the
witness stand, pointed at the jury box to one of the jurors, and said, "[i]t was
a person such as this one." After Moosh returned to the stand, the government
asked him if he saw the driver of the Ryder van in the courtroom. Again, Moosh
left the witness stand, pointed to another juror, and said, "[a] person such as
this one."
At sidebar, the government stated its intention to
rehabilitate the witness by presenting evidence of Moosh's prior identification
of Salameh and Abouhalima from photo arrays shown to him by the FBI shortly
after the bombing. Defense counsel objected, but - significantly - did not
request a hearing to determine whether the prior identification of the photo
arrays was unduly suggestive. Judge Duffy admitted the photo arrays under
Federal Rule of Evidence 801(d)(1)(C). Salameh's counsel preferred that
all the arrays shown to Moosh be admitted, not just the two from which
Moosh had identified Salameh and Abouhalima. All the arrays were then
admitted.
When Moosh earlier identified the defendants from the photo
arrays, he signed statements affirming that the men he selected in the arrays
were the men he saw at the gas station on the morning of the bombing. Before the
arrays were admitted into evidence, the government attached these statements to
each of the two arrays containing the photographs of Salameh and Abouhalima. No
objection was made.
Moosh testified that approximately one week after the
bombing of the World Trade Center, he saw a picture of Salameh in a newspaper
and recognized him as one of the men who bought gas on the morning of the
bombing. Moosh then recounted his meeting with the FBI, during which he
identified the driver and passenger of the Ryder van, and the driver of the
Lincoln, from the photo arrays. The government then showed Moosh the photo
arrays, including those containing photos of Salameh and Abouhalima. Moosh
identified the exhibits as the arrays he had reviewed and confirmed that the
statements attached to those arrays bore his signature.
At that point, trial was adjourned for the day. After the
jury was excused and Moosh left the witness stand, Moosh pointed out Abouhalima
to his interpreter and said, "that Rubio [meaning, in Spanish, a blond or
red-haired person] in the corner . . . that is him." The interpreter related
Moosh's statement to Judge Duffy and the government. The next morning, the
government informed Judge Duffy and defense counsel that, when cross-examination
was completed, it planned on redirect to elicit Moosh's observations about
"Rubio."
On cross-examination by Salameh's counsel, Moosh testified
that he might have been incorrect the day before when he identified the juror as
the driver of the Ryder van. Moosh said that the driver actually looked more
like the defendant Salameh. Moosh walked over to Salameh, stood next to him, and
said, "Yes, it's him . . . . He was this gentleman who came. Yes, because now I
can see him closer up and I can concentrate more."
On redirect examination by the government, Moosh explained
that he recognized Abouhalima in court on the prior evening. On recross, Moosh
explained that he had not looked around the room carefully the day before and he
recognized Abouhalima for the first time as he was leaving the stand.
On appeal, Salameh and Abouhalima stress that the trial
judge committed reversible error by admitting the photo arrays and Moosh's
subsequent in-court identifications. First, Salameh and Abouhalima claim that
the photo array was unduly suggestive and used improperly to refresh Moosh's
recollection. Second, Salameh and Abouhalima contend that because Judge Duffy
improperly allowed the government "to prompt the witness to change his
identification," the in-court identifications of Salameh and Abouhalima were
tainted and prejudicial.
We review a district court's decision to admit
identification evidence for clear error. Jakobetz, 955 F.2d at
803.
1. Use of Photo Array
A prior identification is admissible under Fed. R. Evid.
801(d)(1)(C), regardless of whether the witness confirms the identification
in-court. See United States v. Simmons, 923 F.2d 934, 950 (2d Cir.
1991); United States v. Lewis, 565 F.2d 1248, 1251-52 (2d Cir. 1977). A
prior identification will be excluded only if the procedure that produced the
identification is "so unnecessarily suggestive and conducive to irreparable
mistaken identification that [the defendant] was denied due process of law."
Simmons, 923 F.2d at 950 (internal quotation marks and citation omitted;
alteration in original). A district court's decision to admit a prior
identification is entitled to deference and will not be disturbed absent clear
error. See Jakobetz, 955 F.2d at 803.
The district court did not abuse its discretion by admitting
the photo array as evidence of a prior identification. As an initial, but
important, matter, defendants waived their right to challenge the prior
identification. The government provided the defendants with the photo arrays
before trial and advised them that the arrays were used by the FBI to elicit
identifications of the defendants. However, no defendant sought to suppress the
arrays. See Fed. R. Crim. P. 12(b)(3) (motion to suppress "must be raised
prior to trial").
Moreover, neither Salameh nor Abouhalima requested a
Wade hearing pursuant to United States v. Wade, 388 U.S. 218
(1967), to assess whether the photo arrays were unduly suggestive. Therefore,
that claim was waived. See Fed. R. Crim. P. 12(f) ("Failure by a party to
raise defenses or objections . . . which must be made prior to trial . . . shall
constitute waiver thereof."); United States v. Gomez-Benabe, 985 F.2d
607, 611 (1st Cir. 1993).
Finally, putting aside the waiver issue, Salameh and
Abouhalima have failed to demonstrate that the photo arrays were unduly
suggestive. Each array consisted of six black and white photographs depicting
men very similar in appearance to each other. None of the arrays met the
standard for suppression on the ground of suggestiveness. See United
States v. Gibson, 135 F.3d 257, 260 (2d Cir. 1998) (per curiam); United
States v. Bautista, 23 F.3d 726, 731 (2d Cir. 1994).
Salameh and Abouhalima now cavil that it was improper to
attach Moosh's written statements to two of the photo arrays. First, no
defendant objected to this evidence. Second, they have not shown that the
attachment of the prior statements, viewed in the totality of the circumstances,
was "conducive to irreparable mistaken identification." Simmons, 923 F.2d
at 950 ("[E]ven a suggestive out-of-court identification will be admissible if,
when viewed in the totality of the circumstances, it possesses sufficient
indicia of reliability.").
2. Subsequent In-Court Identifications
The trial court did not err by admitting Moosh's subsequent
in-court identifications of Salameh and Abouhalima.
A witness who identified a defendant prior to trial may make
an in-court identification of the defendant if: (1) the procedures giving rise
to the pretrial identification were not unduly suggestive; or (2) the in-court
identification is independently reliable, even though the pretrial
identification was unduly suggestive. See, e.g., United States
v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994) (citing Manson v.
Brathwaite, 432 U.S. 98, 114 (1977); Jarrett v. Headley, 802 F.2d 34,
42 (2d Cir. 1986)). The reliability of an in-court identification is determined
by "weighing the degree of suggestiveness of [the pretrial procedures] against
'factors suggesting that [the] in-court identification may be independently
reliable rather than the product of the earlier suggestive procedures.'"
United States v. Ciak, 102 F.3d 38, 42 (2d Cir. 1996) (quoting United
States v. Maldonado-Rivera, 922 F.2d 934, 973 (2d Cir. 1990)(citations
omitted; second alteration in original)). Factors suggesting reliability
include: the witness's opportunity to view the defendant during the crime; the
witness's degree of attention; the accuracy of the witness's pre-identification
description of the defendant; the level of certainty demonstrated at the
identification; and the time between the crime and the identification.
Manson, 432 U.S. at 114.
Although the government cannot properly endeavor "to
manufacture an identification" where none existed, it may use a photo array to
attempt to refresh a witness's recollection. Maldonado-Rivera, 922 F.2d
at 975-76. Such a procedure is appropriate "provided there is a foundation for
believing that the witness once had knowledge of the fact as to which his
recollection is to be refreshed." Id. at 976.
As discussed above, Salameh and Abouhalima failed to
demonstrate that Moosh's prior identification was based on unduly suggestive
procedures. Accordingly, any question regarding the reliability of Moosh's
identifications goes only to the weight of the evidence, not its admissibility.
Even assuming, arguendo, that the photo arrays were
unduly suggestive, the in-court identification was admissible because it was
independently reliable. Moosh testified that he had seen and spoken with Salameh
and Abouhalima when he pumped gas for them on the fateful morning. He
independently recognized Salameh's photograph in the newspaper and accurately
described both Salameh and Abouhalima to the FBI. There is no suggestion that
Moosh was equivocal during his FBI interview, including when he identified
Salameh and Abouhalima from the photo arrays. Furthermore, the pretrial
identification occurred shortly after the bombing. See id.
Moreover, the jury witnessed the botched, and subsequently
corrected, in-court identification. The jurors could determine for themselves
the credibility of Moosh's subsequent identification based on this
evidence.
D. Examination of Storage Facility Employee
Abouhalima contends that he was deprived of a fair trial
when the government was allowed to use leading questions during direct
examination of Blessing Igiri, and later when the court interfered during
Salameh's cross-examination of Igiri. We disagree.
Igiri worked at the Space Station. On direct examination, he
testified that Salameh, whom Igiri knew as "Kamal Ibraham," had rented the Shed.
Igiri added that, on the day before the bombing, he spoke with Salameh and
another man at the Space Station while they were waiting for a delivery. Igiri
related that a truck loaded with gas cylinders pulled into the facility and that
Salameh and the other man attended to the delivery.
After discussing the delivery, Igiri said that he could not
recall what happened next. The government then asked Igiri: "Now, sir, did there
come a time when you saw another vehicle approach the gate?" Salameh's objection
that the question was leading was overruled. Igiri answered "no," he had not
seen another vehicle. The trial then was adjourned for lunch.
When trial resumed, Igiri testified that, after the gas
cylinder truck had departed, he had, in fact, observed Salameh and the other man
enter the Space Station in a yellow Ryder van.
On cross-examination, Salameh's counsel pursued his quarry.
He asked Igiri whether he had spoken to the government during the lunch recess.
Igiri said no. However, in a sidebar requested by Salameh's counsel, the
government commendably acknowledged that it had spoken with Igiri during the
recess. At the request of Salameh's counsel, Judge Duffy asked Igiri in open
court whether he had indeed spoken with the government during the recess. Igiri
reiterated his denial. Judge Duffy then asked counsel for the government, in
front of the jury, whether he met with Igiri. Counsel for the government
confirmed that he had.
Judge Duffy instructed Igiri that "[l]awyers are supposed to
talk to witnesses before they arrive here because if they don't know what the
witnesses are going to testify to, God knows what we would be listening to. It
is required. If they sit down and talk to you, there is nothing wrong with that
at all. All right?" No defendant objected to Judge Duffy's questioning of, or
comment to, Igiri. Upon further cross-examination, Igiri admitted meeting with
the government during the recess and answered questions about the meeting.
Abouhalima and Salameh now put forward that Judge Duffy committed reversible
error by: (1) allowing the government to ask leading questions; and (2) his
comments on Igiri's lunch-time meeting with the government.
1. Leading Questions
The government notes that Abouhalima failed to raise his
objections below and appellate review of these claims therefore is barred absent
plain error. See United States v. Olano, 507 U.S. 725, 735-36
(1993). The government forgets, however, that Judge Duffy had earlier
established a ground rule that an objection by one defendant would preserve the
claims of all defendants. Therefore, when Salameh's counsel objected to the
leading question put to Igiri, that objection was deemed raised by Abouhalima,
as well. Accordingly, we review the district court's decision to allow the
government to lead the witness Igiri for an abuse of discretion. See
United States v. Ajmal, 67 F.3d 12, 16 (2d Cir. 1995).
The trial court did not abuse its discretion by allowing the
government to ask Igiri whether he "saw another vehicle approach the gate."
Although leading questions generally should not be used on direct examination, a
district judge may allow them "as may be necessary to develop the witness'
testimony." Fed. R. Evid. 611(c). The challenged question was necessary to
develop Igiri's testimony and elicit information from a nervous witness.
See id.
2. Comments Regarding Meeting
Abouhalima also claims that Judge Duffy's questions and
comments during Igiri's cross-examination were improper and demonstrated bias in
favor of the government. Because no defendant objected to Judge Duffy's
questions and comments, this claim is barred absent plain error. See
Olano, 507 U.S. at 735. However, even if there were a proper objection,
Abouhalima's claim would lack merit because the court properly exercised its
discretion.
Reversal for judicial bias is appropriate only where an
examination of the entire record demonstrates that "the jurors have been
impressed with the trial judge's partiality to one side to the point that this
became a factor in the determination of the jury." United States v.
Valenti, 60 F.3d 941, 946 (2d Cir. 1995) (internal quotation marks and
citation omitted). The trial court's questioning did not demonstrate bias
because Salameh's counsel specifically asked Judge Duffy to question Igiri to
facilitate cross-examination. The judge simply complied with this
request.
Furthermore, although Abouhalima claims that the court's
comments "neutraliz[ed] the witness Igiri's lie about his mid-testimony meeting
with the prosecutor," this claim is not supported by the record. Abouhalima
asserts that Judge Duffy's comments to Igiri condoned the lie that Igiri told
about meeting with the government. To the contrary, Judge Duffy simply explained
to Igiri that it is not improper for a prosecutor to meet with a government
witness regarding the witness's testimony. This comment cannot be construed as a
condonation of Igiri's lie. The jury heard Igiri's lie and subsequent
recantation and could be relied upon to factor this episode into its verdict.
E. Testimony of the Government's Fingerprint
Expert
Ajaj argues that the trial judge erred by admitting the
testimony of a fingerprint expert who opined that Ajaj held a notebook in a
manner consistent with his having written in the notebook.
At trial, the government called Carol Edelen, an FBI
fingerprint expert. The defendants did not contest Edelen's expertise in
analyzing fingerprint evidence. Edelen testified that she identified hundreds of
Ajaj's fingerprints on the terrorist materials that were taken from him when he
entered the United States. For one particular object, a hand-written notebook
which contained instructions on how to build explosives, Edelen explained to the
jury how Ajaj's fingers were positioned in order to leave the prints that she
identified. There was no objection to this testimony.
The government then asked Edelen whether she reached "any
additional conclusions beyond the mere identification of those prints." Ajaj's
counsel objected, arguing that although Edelen was an expert on fingerprint
identification, "I don't know that she's been established as an expert on
holding things." The court sensibly allowed Ajaj's counsel to voir
dire Edelen on her ability to tell how a person was holding an object by
analyzing fingerprint evidence. After listening to the voir dire,
Judge Duffy permitted the government to ask Edelen whether she was able to come
to any conclusions based upon the location of Ajaj's prints on the notebook.
Edelen explained that the position of the fingerprints
suggested that Ajaj was holding the left side of the notebook in his left hand.
She expressed no further opinion about the significance of the fingerprints or
their positioning on the notebook. In summation, the government claimed that
Ajaj, who is right-handed, was the author of the notebook because the author
held the notebook in a manner consistent with how a right-handed person would
hold a notebook while writing.
Ajaj argues that this testimony should not have been
admitted. He argues that: (1) the subject of Edelen's testimony was not
"scientific knowledge" and thus was not admissible under Federal Rule of
Evidence 702; and (2) even if the testimony was "scientific knowledge," Edelen
was not qualified to give such testimony. Neither of Ajaj's arguments has
merit.
Generally, the admission of expert testimony is appropriate
if "scientific, technical, or other specialized knowledge will assist the trier
of fact." Fed. R. Evid. 702. We have held that expert testimony is proper under
Rule 702 if it illuminates matters "not within the common knowledge of the
average juror." United States v. Duncan, 42 F.3d 97, 102 n.3 (2d Cir.
1994).
When scientific evidence is proffered, the district court
must ensure that it "rests on a reliable foundation and is relevant to the task
at hand," before allowing it to be presented to the jury. Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 597 (1993). A district court's decision to
admit scientific evidence, like its decision to admit any other type of
evidence, is reviewed under an abuse of discretion standard. See
General Elec. Co. v. Joiner, 118 S. Ct. 512, 517 (1997). A decision to
admit scientific evidence is not an abuse of discretion unless it is "manifestly
erroneous." McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1042 (2d Cir.
1995).
Ajaj argues that identification of the placement of
fingerprints is not based on any accepted scientific theory or principle. Thus,
Ajaj maintains that although the identification of fingerprints rests on a
reliable scientific foundation, an opinion on how particular fingerprints were
made does not. His argument is wide of the mark.
Edelen explained that, given her expertise in identifying
fingerprints, she "could determine in what position your hand was placed because
[she] can determine what the top of the fingerprint is, or the side of the
fingerprint is, so [she] can tell the position that you would be holding [for
example, a pad of paper]." Indeed, Ajaj did not object to Edelen's lengthy
exposition on the way his fingers were positioned on the notebook when they left
the prints Edelen identified.
The voir dire made clear that Edelen's
testimony regarding the placement of Ajaj's hand on the notebook was based on
the same well-accepted scientific foundation as her identification of his
fingerprints. Edelen explained that when a finger touches an object, the ridges
of that finger leave an identifiable mark upon the object, which is referred to
as a latent print. By comparing the ridges of a latent print to a sample print,
a fingerprint expert can tell which finger left the latent print. A fingerprint
expert can also tell whether a particular part of a finger left a latent
print by comparing the ridges on that part of the finger with those on
the object. By determining what part of a finger left a given print, a
fingerprint expert can then determine the position of the finger when it left
that print. Finally, by putting together the position of all the fingers, an
expert can tell how a person was holding an object.
Judge Duffy correctly concluded that Edelen's opinion on the
way that Ajaj held the notebook was based on a reliable scientific foundation.
Ajaj's claim that Edelen was unqualified to give the
testimony regarding the way he was holding the notebook is also frivolous.
Edelen was qualified to give expert testimony on how fingerprints are made, and
how a person was holding an object when a print was made. See
McCullock, 61 F.3d at 1044; Locascio, 6 F.3d at 937.
F. Admission of DNA Evidence
Shortly after the World Trade Center bombing, a letter
claiming responsibility for the attack was sent to the New York
Times. At trial, the government introduced DNA evidence that suggested
that Ayyad's saliva was used to seal the envelope containing the letter. On
appeal, Ayyad argues that the court should have excluded the DNA evidence
because the government failed to disclose the report of its DNA expert in a
timely manner. We reject this argument.
At a pretrial conference held on April 1, 1993, one month
after the bombing, Judge Duffy set a target date of July 6, 1993, for the
government's disclosure of expert reports. Although Ayyad implies that Judge
Duffy "ordered" discovery to be completed by July 6, he issued no such order.
Rather, in estimating a trial date, Judge Duffy stated that "[i]f you get
everything done and the reports issued by the 6th of July," a trial date of
September 14 was "feasible." Full disclosure by July 6, appears to have been a
goal, not a mandate.
On June 28, 1993, the government turned over a report by the
FBI laboratory containing a DNA analysis of the saliva on the envelope. The June
28 report did not identify potential sources of the saliva. On July 14, 1993,
the government disclosed an additional report, dated July 13, 1993, which opined
that Ayyad was a potential source of the saliva. Ayyad did not protest the
timing of this disclosure or request an adjournment of the trial. Opening
statements in the trial began on October 4, 1993.
The government is required to disclose to a defendant
results or reports of scientific tests that are material to the defense and are
known, or could be discovered through due diligence, by the government.
See Fed. R. Crim. P. 16(a)(1)(D). A district court has broad discretion
in fashioning a remedy for the government's violation of its obligations under
Rule 16(a), including ordering the exclusion of evidence. See United
States v. Thai, 29 F.3d 785, 804 (2d Cir. 1994). A district court's decision
not to exclude evidence that was the subject of a Rule 16(a) violation is not
grounds for reversal unless the violation caused the defendant "substantial
prejudice." See, e.g., United States v. Adeniji, 31 F.3d
58, 64 (2d Cir. 1994). "Substantial prejudice" means "the prejudice resulting
from the government's untimely disclosure of evidence, rather than the prejudice
attributable to the evidence itself." United States v. Sanchez, 912 F.2d
18, 23 (2d Cir. 1990).
The government's disclosure of the July 13 report on July 14
was not a violation of Rule 16(a). The government disclosed the report one day
after it was issued and almost three months before the start of the trial. Ayyad
argues that the disclosure ran afoul of Rule 16(a) because it violated Judge
Duffy's "order" that all expert reports be disclosed by July 6. However, as
explained above, no such order was issued. Indeed, it is telling that Ayyad did
not object to the expert report in the district court on the ground that it was
produced in violation of Rule 16(a).
Even assuming that the July 14 disclosure of the expert
report violated Rule 16(a), Ayyad fails to demonstrate "substantial prejudice"
arising from the late disclosure. The report was disclosed just one week after
the discovery target date and almost three months before the start of trial.
Thus, Ayyad's counsel had ample time to analyze the report and to construct a
defense to its contents. Judge Duffy's failure to suppress therefore is not
grounds for reversal. See United States v. Matthews, 20 F.3d 538,
550 (2d Cir. 1994).
Ayyad also makes an unsubstantiated claim that the
government wrongfully withheld certain documents relevant to the DNA evidence
until just before its DNA expert's testimony. Ayyad argues that although the
government turned over these documents immediately before the expert's testimony
pursuant to 18 U.S.C. § 3500, disclosure should have been made earlier under
Rule 16(a). However, Ayyad did not identify a single document which the
government improperly disclosed as § 3500 material. The record does not suggest
that any such documents exist. Thus, we conclude that Ayyad's conclusory claim
is without merit.
G. Confrontation Clause
Abouhalima contends that the trial judge violated his Sixth
Amendment right to confront adverse witnesses by excluding evidence that
allegedly impeached the credibility of three government witnesses -- Ashraf
Moneeb, Carl Butler and Wahed Moharam. Ajaj also argues that Judge Duffy
improperly limited cross-examination of these witnesses.
The Confrontation Clause of the Sixth Amendment guarantees a
criminal defendant the right "to be confronted with the witnesses against him."
U.S. Const. Amend. VI; see Delaware v. Van Arsdall, 475 U.S. 673,
678 (1986). While the Sixth Amendment guarantees the right to cross-examine
witnesses at trial, the scope and extent of cross-examination are committed to
the sound discretion of the trial judge. See United States v.
Scotti, 47 F.3d 1237, 1248 (2d Cir. 1995). "So long as the jury has before
it sufficient information to make a discriminating appraisal of the witness's
possible motives for testifying falsely in favor of the government, we will
uphold the trial court's exercise of its discretion." Id. (quoting
United States v. Concepcion, 983 F.2d 369, 391-92 (2d Cir. 1992)).
Furthermore, the trial judge has "wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on . . . cross-examination based
on concerns about, among other things, harassment, prejudice, confusion of the
issues, the witness' safety, or interrogation that is repetitive or only
marginally relevant." Van Arsdall, 475 U.S. at 679.
1. Moneeb
Moneeb testified that he lived with Salameh and Yousef in
Jersey City during the fall of 1992, and saw Abouhalima visit Salameh and Yousef
on several occasions. Abouhalima argues that Judge Duffy precluded
cross-examination of Moneeb on the circumstances of his questioning by the FBI;
specifically that Moneeb was in fear, handcuffed and held at gunpoint during the
questioning, and that the FBI threatened to deport Moneeb if he refused to
answer their questions.
Although Judge Duffy limited Abouhalima's attempts to elicit
the specific circumstances of the FBI's questioning of Moneeb, the limitations
were not an abuse of discretion. See Scotti, 47 F.3d at 1248. In
fact, Judge Duffy overruled several government objections, and permitted
Abouhalima to elicit that: (1) Moneeb was nervous about testifying and afraid of
the FBI agents; (2) the agents pointed a gun at Moneeb and handcuffed him before
transporting him to their office for questioning; and (3) the agents questioned
Moneeb about his pending citizenship application and confiscated his green card.
Judge Duffy also permitted defense counsel to question Moneeb specifically about
the "pressure" he felt as a result of his contact with the FBI. Accordingly, the
jury was given sufficient information to make a discriminating evaluation of
Moneeb's credibility and possible motives for testifying falsely in favor of the
government. See id.
2. Butler
Before Butler testified, Judge Duffy reviewed, in
camera, prison records relating to a sentence Butler served between 1956
and 1967 for robbery, assault and sodomy. Evidence arguably suggested that
Butler tried to conceal three prior misdemeanor convictions for disorderly
conduct at his 1956 sentencing proceeding. Judge Duffy ruled that the evidence
suggesting that Butler may have lied at his 1956 sentencing would not be
disclosed to the defense. Immediately thereafter, in a conference attended by
defense counsel, Judge Duffy granted the government's motion to preclude
entirely any cross-examination of Butler regarding his criminal record. In
addition to the 1956 felony conviction, Butler's criminal record included
various misdemeanor arres