U.S. v. Bin Laden

91 F.Supp.2d 600

UNITED STATES of America, v. Usama BIN LADEN, a/k/a "Usamah Bin-Muhammad Bin-Ladin," a/k/a "Shaykh Usamah Bin-Ladin," a/k/a "Abu Abdullah," a/k/a "Mujahid Shaykh," a/k/a "Hajj," a/k/a "al Qaqa," a/k/a "the Director," a/k/a "the Supervisor," Muhammad Atef, a/k/a "Abu Hafs," a/k/a "Abu Hafs el Masry," a/k/a "Abu Hafs el Masry el Khabir," a/k/a "Taysir," a/k/a "Sheikh Taysir Abdullah," a/k/a "Abu Fatimah," Ayman Al Zawahiri, a/k/a "Abdel Muaz," a/k/a "Dr. Ayman al Zawahiri," a/k/a "the Doctor," Mamdouh Mahmud Salim, a/k/a "Abu Hajer al Iraqi," a/k/a "Abu Hajer," Khaled Al Fawwaz, a/k/a "Khaled Abdul Rahman Hamad al Fawwaz," a/k/a "Abu Omar," a/k/a "Hamad," Ali Mohamed, a/k/a "Ali Abdelseoud Mohamed," a/k/a "Abu Omar," a/k/a "Omar," a/k/a "Haydara," a/k/a "Taymour Ali Nasser," a/k/a "Ahmed Bahaa Eldin Mohamed Adam," Wadih El Hage, a/k/a "Abdus Sabbur," a/k/a "Abd al Sabbur," a/k/a "Wadia," a/k/a "Abu Abdullah al Lubnani," a/k/a "Norman," a/k/a "Wa'da Norman," Fazul Abdullah Mohammed, a/k/a "Harun," a/k/a "Harun Fazhl," a/k/a "Fazhl Abdullah," a/k/a "Fazhl Khan," Mohamed Sadeek Odeh, a/k/a "Abu Moath," a/k/a "Noureldine," a/k/a "Marwan," a/k/a "Hydar," a/k/a "Abdullbast Awadah," a/k/a "Abdulbasit Awadh Mbarak Assayid," Mohamed Rashed Daoud Al-`Owhali, a/k/a "Khalid Salim Saleh Bin Rashed," a/k/a "Moath," a/k/a "Abdul Jabbar Ali Abdel-Latif," Mustafa Mohamed Fadhil, a/k/a "Mustafa Ali Elbishy," a/k/a "Hussein," a/k/a "Hussein Ali," Khalfan Khamis Mohamed, a/k/a "Khalfan Khamis," Ahmed Khalfan Ghailani, a/k/a "Fupi," a/k/a "Abubakary Khalfan Ahmed Ghailani," a/k/a "Abubakar Khalfan Ahmed," Fahid Mohammed Ally Msalam, a/k/a "Fahad M. Ally," Sheikh Ahmed Salim Swedan, a/k/a "Sheikh Bahamadi," a/k/a "Ahmed Ally," Defendants.

No. S6 98 CRIM.

No. 1023 LBS.

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

March 30, 2000.

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Mary Jo White, United States Attorney for the Southern District of New York, New York City, Kenneth Karas, Patrick Fitzgerald, Michael J. Garcia, Paul Butler, Assistant United States Attorneys, Paul McAllister, Charles D. Adler, George Goltzer, New York City, for Defendant Salim.

James Roth, Lloyd Epstein, New York City, for Defendant Mohamed.

Samuel Schmidt, Joshua Dratel, Deborah I. Meyer, New York City, for Defendant El Hage.

Michael Young, Carl J. Herman, Sandra L. Babcock, New York City, for Defendant Odeh.

Leonard Joy, Robert Tucker, Mark Gombiner, David Bruck, New York City, for Defendant Al-`Owhali.

Jeremy Schneider, David Stern, David Ruhnke, New York City, for Defendant Khamis Mohamed.

OPINION

SAND, District Judge.

The Defendants are charged with numerous offenses arising out of their alleged involvement in an international terrorist organization led by Defendant Usama Bin Laden ("Bin Laden") and that organization's alleged involvement in the August, 1998 bombings of the United States Embassies in Nairobi, Kenya and Dar es Salaam, Tanzania. Collectively, they seek a dismissal of the Indictment, S(6) 98 Cr. 1023(LBS) ("the Indictment"), dismissal of particular counts from the Indictment, the striking of alleged surplusage from the Indictment, disqualification of certain attorneys from serving as advocates for the Government in this case, and disqualification of United States citizens from serving on the jury. For the reasons set forth below, all of the requested relief is denied.

INTRODUCTION

This is the third of a series of three opinions in which the Court has addressed the first set of pre-trial motions filed by the Defendants. Because all of the parties to this case anticipated protracted pretrial proceedings and a lengthy discovery process, the Court sought to expedite matters by ordering the Defendants to file promptly, well in advance of trial,¹ any motions that did not require the completion of a significant amount of discovery.² That set of motions was filed on December 6, 1999³ and became fully submitted, after extensive briefing and oral argument, on February 29, 2000.

As explained in two previous opinions, the Court has already granted in part and denied in part Defendant Odeh's motion to dismiss the Indictment for lack of jurisdiction. see United States v. Bin Laden, 92 F.Supp.2d 225 (S.D.N.Y.2000) (dismissing four of the Indictment's 267 counts), and ordered the Government to file a bill of particulars, see United States v. Bin Laden, ___ F.Supp.2d ___ (S.D.N.Y.2000). Presently before the Court are all of the other motions filed on December 6, including several challenges to the face of the Indictment — broad challenges to the Indictment as a whole and more focused applications directed at particular counts. The Defendants have also moved to disqualify two attorneys from serving as advocates for the Government at trial and in certain pre-trial proceedings, and seek an order that would prevent United States citizens from numerically dominating the jury.

Although we believe that, as a matter of sound pre-trial management, the Court's expedited motion schedule was necessary and beneficial, an unfortunate consequence of that schedule is that some of the claims that have been advanced by the Defendants are premature at this time. We recognize that the Defendants had to file those motions at such an early date to avoid inadvertently waiving any rights. Where we indicate below that a particular claim is premature, it is not meant as a rebuke to the Defendants or their counsel, but only to indicate that, in those instances, our denial of relief is without prejudice to the application being renewed at a more appropriate time.

BACKGROUND

Much of the factual and legal background of this case is fully set forth in the Court's memorandum and order addressing the Defendants' requests for a bill of particulars. See U.S. v. Bin Laden, 92 F.Supp.2d at 232. Familiarity with that memorandum is presumed. Some of the motions addressed below, however, relate to aspects of the Government's investigation of this case and portions of the Indictment which were not implicated by the Defendants' earlier motions. We therefore summarize some additional background information in the pages that follow.

The United States Attorney's Office in the Southern District of New York has been investigating Bin Laden and the al Qaeda organization he is said to have founded, since "late 1995 or early 1996." (Affirmation of Patrick J. Fitzgerald of Jan. 24, 2000 ("Fitzgerald Affirmation") at ¶ 6; Affirmation of Kenneth M. Karas ("Karas Affirmation") of Mar. 20, 2000, at ¶ 7; see also Indictment at ¶ 66 (dating the investigation back to 1996).) That investigation has been led by Assistant United States Attorney ("AUSA") Patrick J. Fitzgerald and AUSA Kenneth M. Karas, and has been conducted in conjunction with the New York office of the Federal Bureau of Investigation ("FBI") (see Fitzgerald Affirmation at ¶ 6; Karas Affirmation at ¶ 7) as well as "a number of other federal, state and local agencies" (Indictment at ¶ 66). The evidence gathered by that investigation was presented to the June 1996 Special Grand Jury in this district ("the Grand Jury"). (See Fitzgerald Affirmation at ¶ 7.)

One of the witnesses who testified before the Grand Jury was Defendant Wadih El Hage ("El Hage"). Mr. El Hage appeared before the Grand Jury,⁴ for the first time, on September 24, 1997. (See id.) At that time, according to the Indictment, the Grand Jury's investigation focused on al Qaeda's "structure and operational status" in various places around the world, the targets of al Qaeda's terrorist activities, and any relationships that might have existed between El Hage and various al Qaeda leaders. (See Indictment at ¶ 66.) According to the Government, Mr. El Hage testified falsely about each of those subjects. (See Indictment at ¶¶ 74-76, 79; Declaration of Sam A. Schmidt of Nov. 29, 1999, at ¶¶ 31, 34.)

On August 7, 1998, explosives were detonated, nearly simultaneously, in the areas surrounding the United States Embassies in Nairobi, Kenya and Dar es Salaam, Tanzania, causing numerous casualties and extensive property damage ("the embassy bombings"). Fitzgerald and Karas traveled to Nairobi and Dar es Salaam, respectively, to investigate. (See Fitzgerald Affirmation at ¶ 6; Karas Affirmation at ¶ 7.) Two other lawyers from the Department of Justice as well as "a large number of FBI agents" accompanied them. (Id.) In Nairobi, the American investigators, working together with Kenyan police, interviewed Defendant Mohamed Sadeek Odeh ("Odeh"), over a period of two weeks, between August 15 and August 27, 1998. (See id. at ¶ 4.) AUSA Fitzgerald participated in some of those interviews but affirms that he "was never present for any questioning of Odeh at any time when [he] was not accompanied by at least one of the FBI agents." (Id.) Most of the time, according to Fitzgerald, two FBI agents and three Kenyan police officials were present when he interviewed Odeh. (Id.)

In the aftermath of the bombing, the Grand Jury expanded the scope of its investigation into Bin Laden and al Qaeda to include an investigation into that group's possible involvement in the embassy bombings. (See Indictment at ¶ 70(iii)-70(iv).) On September 16, 1998, Mr. El Hage appeared, once again, to testify before the Grand Jury. El Hage was told that the Grand Jury was investigating possible instances of perjury before a grand jury and that he was a target of that investigation. He was then asked many of the same questions that had been asked during his Grand Jury appearance one year earlier, and was asked about the embassy bombings. According to the Government, Mr. El Hage repeated the false testimony he had provided a year earlier. (See Indictment at ¶¶ 81-84, 86, 88-89.)

Immediately after testifying on September 16, 1998, Mr. El Hage was arrested. He was indicted a few days later on eight counts of committing perjury before a federal grand jury. That indictment...