1994 WL 16181176 (2nd Cir.)

For opinion see 152 F.3d 88, 84 F.3d 47

United States Court of Appeals, Second Circuit.

UNITED STATES OF AMERICA, Appellee, v. Mohammed A SALAMEH, Nidal Ayyad, Mahmoud Abouhalima, also known as Mahmoud Abu Halima, Ahmad Mohammad Ajaj, also known as Khurram Kham, Defendants-Appellants, Ramzi Ahmed Yousef, Bilal Alkaisi, also known as Bilal Elgisi, Aboul Rahman Yasin, also known as Aboud, Defendants.

Nos. 94-1312, 94-1312L, 94-1313, 94-1314, 94-1315.

1994.

An Appeal from A Judgment of the United States District Court for the Southern District of New York

Brief for Appellant Mahmoud Abouhalima

Glenn A. Garber, of Counsel.

Lawrence Mark Stern, 100 Hudson Street, #6A, New York, NY 10013, 212-925- 6863, Attorney for Mahmoud Abouhalima.

*i TABLE OF CONTENTS

TABLE OF AUTHORITIES ... i-xii

STATEMENT PURSUANT TO RULE 28(a) ... 1

PRELIMINARY STATEMENT ... 1

ISSUES PRESENTED ... 1

STATEMENT OF FACTS ... 4

I. The Prosecution's Case: Circumstantial Evidence of Association; No Knowledge or Intent to Bomb World Trade Center; Denial of Voluntariness Hearing; Suggested In-Court Identification; Irrelevant Evidence; Opinions About A Bomb and It's Container ... 4

II. The Prosecution's Opening and Summations: Misrepresentation of Fact, Shifting the Burden, supplying Testimony ... 23

III. The Charge: Circumstantial Evidence Presumes guilt; Defense Counsel Singled Out by Name for Criticism; "Piles of Stuff" from Appellant's Apartment Offered in Evidence by the Prosecution; Knowledge and Intent to Bomb World Trade Center Not Necessary for Guilt ... 24

IV. The Compounding of Irrelevant Facts to Give the Appearance of a Case ... 27

V. The Concealments and Misrepresentations of Facts About Government Informants and Preclusion of Cross-Examination Into the Motives and Biases of Government Witnesses ... 30

VI. In-Court Suggestion that the Witness Moosh Identify Apellant Instead of a Juror ... 34

VII. The Prosecution's In-Court and Out-of-Court Coaching of the Witness Igiri to Identify Salameh in the Ryder Van, and the Court's Minimization of Igiri's Lie ... 37

VIII. The Parade of Victims and Autopsy Photographs, Hate Literature About Killing Jews and Christians and Other Prejudicial Evidence ... 39

*ii IX. Jury Selection: Islamic Bias Voir Dire Denied Despite Prosecution Attribution to Defendants of Literature Advocating Religious Wars in the Name of Islam ... 44

X. The Denial of Severance: The Precht Summation Conceding Ramzi Yousef's Plan to Bonb ... 45

XI. Jury Deliberations: Court Excision of Relevant Defense Testimony from Read-Backs Requested by the Jury ... 46

XII. The Sentence: Denial of Counsel of Choice and Effective Assistance of Appointed counsel; Illegal Sentence and Appearance of Bias of the Court ... 48

SUMMARY OF ARGUMENT ... 53

ARGUMENT ... 57

POINT I

THE EVIDENCE AGAINST APPELLANT WAS IRRELEVANT, PREJUDICIAL, VIOLATIVE OF DUE PROCESS, RIGHTS TO COUNSEL AND AGAINST SELF-INCRIMINATION, AND THE RULES OF EVIDENCE, AND INSUFFICIENT AS A MATTER OF LAW ... 57

POINT II

THE PROSECUTION'S MISREPRESENTATIONS IN OPENING AND SUMMATION, COMPOUNDED BY THE COURT'S DELETIONS OF RELEVANT TESTIMONY FROM READ-BACKS REQUESTED BY THE JURY, AND THE PROSECUTOR'S TESTIMONY AND VOUCHING, INFLAMING THE JURY WITH THE FEAR OF TERRORISM, AND SHIFTING THE BURDEN OF PROOF DEPRIVED APPELLANT OF A FAIR TRIAL ... 73

POINT III

THE COURT'S CHARGES THAT CIRCUMSTANTIAL EVIDENCE IS WHAT EVERYONE KNOWS ABOUT A BULLY, THAT DEFENSE COUNSEL'S ARGUMENTS WERE WRONG AND THAT "PILES OF STUFF" NOT IN EVIDENCE WERE FOUND IN APPELLANT'S APARTMENT, AND THAT CONSPIRACY TO BOMB THE WORLD TRADE CENTER DID NOT REQUIRE SPECIFIC INTENT AND KNOWLEDGE DEPRIVED APPELLANT OF THE CONSTITUTIONAL RIGHTS TO FAIR TRIAL AND DUE PROCESS OF LAW, AND TO GRAND JURY INDICTMENT AND FAIR NOTICE OF THE CHARGES AGAINST HIM ... 77

A. Circumstantial Evidence: What Everyone Knows About a Bully ... 78

*iii B. The Court's Charge That Defense Counsel's Arguments Were Wrong and That There Were "Piles of Stuff" Found in Appellant's Apartment But Not Introduced in Evidence ... 80

C. The Court's Charge That Conspiracy to Bomb the World Trade Center Does Not Require Specific Intent and Knowledge ... 82

POINT IV

THE TRIAL COURT'S EX PARTE AGREEMENT WITH THE PROSECUTION TO CONCEAL THE EVIDENCE, ITS MISREPRESENTATION TO DEFENSE COUNSEL, AND THE PROSECUTOR'S MISREPRESENTATION TO THE JURY THAT A WITNESS WAS NOT A PAID GOVERNMENT INFORMANT ON THIS CASE, THE COURT'S CONCEALMENT OF OTHER RELEVANT FACTS ABOUT PROSECUTION WITNESSES, AND ITS PRECLUSIONS OF CROSS-EXAMINATION CONSTITUTED REVERSIBLE ERROR IN VIOLATION OF APPELLANT'S FIFTH AND SIXTH AMENDMENT RIGHTS TO EFFECTIVE COUNSEL, DUE PROCESS, AND CROSS-EXAMINATION, AND HIS DUE PROCESS RIGHT TO AN IMPARTIAL JUDGE ... 88

POINT V

THE PROSECUTOR'S IN-COURT PROMPTING OF A WITNESS WITH A SUGGESTIVE PHOTOSPREAD TO IDENTIFY APPELLANT INSTEAD OF A JUROR DENIED APPELLANT A FAIR TRIAL AND DUE PROCESS OF LAW ... 95

POINT VI

THE PROSECUTOR'S COERCIVE QUESTIONING OF HIS WITNESS TO OBTAIN DESIRED ANSWERS, THE COURT'S INTERRUPTION OF CROSS-EXAMINATION ON THE SUBJECT OF THE WITNESS' RESULTANT LIE, AND THE COURT'S INSTRUCTIONS AMELIORATING THE INCIDENT AND SUPPLYING NEUTRALIZING TESTIMONY, VIOLATED THE RULES OF EVIDENCE AND DEPRIVED APPELLANT OF THE CONSTITUTIONAL RIGHTS TO CROSS-EXAMINATION, FAIR TRIAL, AND DUE PROCESS OF LAW ... 102

POINT VII

ANGER, FEAR, AND HATRED AGAINST APPELLANT WERE INSTILLED IN THE JURY BY DAYS OF VICTIMS TESTIMONY GRUESOME AUTOPSY PHOTOS, MEDICAL EXAMINER TESTIMONY, AND ORAL RECITATIONS OF HATE LITERATURE IRRELEVANT TO GUILT AND DENYING APPELLANT A FAIR TRIAL AND DUE PROCESS OF LAW ... 107

*iv POINT VIII

THE COURT'S REFUSAL TO CONDUCT THE REQUESTED PROBING VOIR DIRE OF THE JURY ON BIAS AGAINST MUSLIMS AND REACTION TO HATE LITERATURE, WHERE THE CRIME CHARGED WAS VIOLENT, THE APPELLANT WAS A MEMBER OF A RACIAL, ETHNIC AND RELIGIOUS GROUP DIFFERENT THAN THE JURORS, AND THE PROSECUTION PRESENTED INFLAMMATORY EVIDENCE CONSISTING OF LITERATURE ADVOCATING RELIGIOUS WARS IN THE NAME OF ISLAM, DENIED APPELLANT THE SIXTH AMENDMENT RIGHT TO AN IMPARTIAL JURY ... 112

POINT IX

APPELLANT'S JOINDER AT A TRIAL WITH ONE CO-DEFENDANT WHOSE LUGGAGE CONTAINED HATE LITERATURE WHICH WAS INTRODUCED AGAINST APPELLANT AND WITH ANOTHER DEFENDANT WHO ARGUED THAT AN ASSOCIATE OF APPELLANT'S HAD MASTERMINDED THE PLOT TO BLOW UP THE WORLD TRADE CENTER DEPRIVED APPELLANT OF A FAIR TRIAL AND DUE PROCESS OF LAW ... 117

POINT X

APPELLANT WAS DENIED COUNSEL OF CHOICE, EFFECTIVE ASSISTANCE OF COUNSEL, AND AN IMPARTIAL JUDGE AT SENTENCING, AND THE SENTENCE VIOLATED STATUTES, GUIDELINES AND THE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND AGAINST DOUBLE JEOPARDY ... 121

A. Denial of Counsel of Choice ... 122

B. Denial of Effective Assistance of Assigned Counsel ... 125

C. The Sentence in Violation of Double Jeopardy, Due Process, Statute and Guidelines ... 128

POINT XI

PURSUANT TO RULE 28(i) OF THE FEDERAL RULES OF APPELLATE PROCEDURE, APPELLANT HEREBY ADOPTS BY REFERENCE AND INCORPORATES HEREIN ALL POINTS AND ARGUMENTS OF CO-APPELLANTS TO THE EXTENT THEY ARE APPLICABLE TO APPELLANT, AND NOT INCONSISTENT HEREWITH ... 137

CONCLUSION ... 137

*i TABLE OF AUTHORITIES

Cases:

Alford v. United States, 282 U.S. 687 (1931) ... 93

Anderson v. United States, 417 U.S. 211, 224 (1974) ... 61

Armstrong v. McAipin, 625 F.2d 433, 441 (2d Cir., 1980)(en banc), vacated on other grounds, 449 U.S. 1106 (1981) ... 125

Brady v. Maryland, 373 U.S. 83 (1963) ... 90, 104

Busic v. United States, 446 U.S. 398 (1980) ... 135

Davis v. Alaska, 415 U.S. 308, 318, (1974) ... 91, 93, 102

Delaware v. Van Arsdall, 475 U.S. (1986) ... 90-91, 94, 102, 105

Direct Sales Co. v. United States, 319 U.S. 703, 711 (1943) ... 61-62

Dunston v. United States, 878 F.2d 648 (2d Cir., 1989) ... 127

Ellis v. City of Chicago, 667 F.2d 606, 612 (7th Cir., 1981) ... 103

Evanston Bank v. Brinks. Inc., 853 F.2d 512 (7th Cir., 1988) ... 68

Francis v. Franklin, 471 U.S. 307, 313 (1985) ... 84

Gradsky v. United States, 373 F.2d 706 (5th Cir., 1967) ... 74

Griffin v. California, 380 U.S. 609 (1965) ... 76

Guidroz v. Lynaugh, 852 F.2d 832 (5th Cir., 1988) ... 74

Haller v. Robbins, 409 F.2d 857, 859 (1st Cir., 1969) ... 90

Henry v. Speckard, 22 F.3d 1209 (2d Cir. 1994) ... 102

Holland v. United States, 348 U.S. 121, 139-140 (1954) ... 79-80

Ianelli v. United States, 420 U.S. 770, 777 n. 10, (1975) ... 83

In Re Abouhalima, et. al, No. 94-3038 ... 123

*ii In Re Grand Jury Subpoena Directing Taylor to Appear and Testify, 567 F.2d 1183, 1188 (2d Cir., 1977) ... 90

Jackson v. Virginia, 443 U.S. 307, 318 (1979) ... 62

Kotteakos v. United States, 328 U.S. 750, 774-775, 66 S.Ct. 1239, 1252-1253, 90 L.Ed. 1557 (1946) ... 118

Leon v. Kuhlman, 443 F.Supp. 50, 61 (S.D.N.Y. 1977) ... 81

Lewis v. Baker, 526 F.2d 470 (2d Cir., 1975) ... 93

Mann v. Dugger, 817 F.2d 1471 (11th Cir., 1987) ... 81

McConnell v. United States, 393 F.2d 404, 406-07 (5th Cir., 1968) ... 103

Miranda v. Arizona, 384 U.S. 436 (1966) ... 60

Moore v. Illinois, 434 U.S. 220, 229 (1977) ... 97

Neil v. Biggers ... 98-99

Offut v. United States, 348 U.S. 11 (1954) ... 89, 133

Pinkerton v. United States, 328 U.S. 640 (1946) ... 73, 87-88, 119

Ouercia v. United States, 289 U.S. 466, 470 (1933) ... 104

Reutter v. Solem, 888 F.2d 578 (8th Cir., 1989) ... 90

Rosales-Lopez v. United States, 451 U.S. 182 (1981) ... 115, 117

Roviaro v. United States 353 U.S. 53 (1957) ... 90, 93

Rushen v. Spain, 464 U.S. 114 (1983) ... 91

Sandstrom v. Montana, 442 U.S. 510, 520-25 (1979) ... 79

Simmons v. United States, 390 U.S. 377 (1968) ... 96

Solomon v. Smith, 645 F.2d 1179, 1185-86 (2d Cir., 1981) ... 87

Strickland v. Washington, 466 U.S. 668 (1984) ... 102

United States v. Abel, 469 U.S. 45, 50, 51 (1984) ... 91, 102

United States v. Abrams, 539 F. Supp. 378 (S.D.N.Y., 1982) ... 85

United States v. Afjehei, 869 F.2d 670 (2d Cir., 1989) ... 68

*iii United States v. Alexander, 860 F.2d 508 (2d Cir., 1988) ... 127

United States v. Alpert, 28 F.3d 1104 (11th Cir., 1994) ... 135

United States v. Amato, 15 F.3d 230 (2d Cir., 1994) ... 129

United States v. Anderson, 981 F.2d 1560 (10th Cir., 1992) ... 71

United States v. Aponte-Suarez, 905 F.2d 483 (1st Cir., 1990) ... 70

United States v. Archibald, 734 F.2d 938, 940 (2d Cir., 1984) ... 96

United States v. Arefi, 847 F.2d 1003 (2d Cir., 1988) ... 129

United States v. Armone, 363 F.2d 385 (2d Cir., 1966) ... 81

United States v. Arroyo-Angulo, 580 F.2d 1137 (2d Cir., 1978) ... 90

United States v. Bagley, 473 U.S. 667 (1985) ... 104

United States v. Bailey, 975 F.2d 1028 (4th Cir., 1992) ... 136

United States v. Beasley, 2 F.3d 1551 (11th Cir., 1993) ... 76

United States v. Bejasa, 904 F.2d 137 (2d Cir., 1990) ... 81

United States v. Bell, 464 F.2d 667 (2d Cir., 1972) ... 90-91

United States v. Bloom, 237 F.2d 158, 163 (2d Cir., 1956) ... 80

United States v. Borelli, 336 F.2d 376, 384 (2d Cir. 1964) ... 83

United States v. Bortnovsky, 820 F.2d 572 (2d Cir., 1987) ... 85

United States v. Boyce, 797 F.2d 691 (8th Cir. 1985) ... 81

United States v. Cangiano, 491 F.2d 906 (2d Cir., 1974) ... 83

*iv United States v. Carson, 702 F.2d 351, 361 (2d Cir., 1983) ... 61

United States v. Cassamento, 887 F.2d 1141, 1156 (2d Cir., 1989) ... 63

United States v. Clark, 475 F.2d 240 (2d Cir., 1973) ... 78, 84

United States v. Clark, 613 F.2d 391, 405 (2d Cir., 1979) ... 74

United States v. Coleman, 811 F.2d 804 (3d Cir., 1987) ... 70

United States v. Concepcion, 983 F.2d 369, 378-79 (2d Cir., 1992) ... 97, 101-102, 134

United States v. Correa-Vargas, 860 F.2d 35 (2d Cir., 1988) ... 134

United States v. Criollo, 962 F.2d 241 (2d Cir., 1992) ... 75

United States v. Curcio, 694 F.2d 14 (2d Cir., 1982) ... 123-125

United States v. Damsky, 740 F.2d 134, 138 n.3 (2d Cir., 1984) ... 74-75

United States v. Daniels, 558 F.2d 122 (2d Cir., 1977) ... 127

United States v. Davis, 965 F.2d 804 (10th Cir., 1992) ... 72

United States v. DeNoia, 451 F.2d 979, 981 (2d Cir., 1971) ... 71

United States v. Diaz, 797 F.2d 99 (2d Cir., 1986) ... 133

United States v. Diloretto, 888 F.2d 996 (3d Cir., 1989) ... 74

United States v. DiSimone, 560 F.2d 532 (5th Cir., 1981) ... 70

United States v. DeSisto, 289 F.2d 833, 834 (2d Cir., 1961) ... 105

United States v. Dorr, 636 F.2d 117 (5th Cir., 1981) ... 74

United States v. Dove, 916 F.2d 41 (2d Cir., 1990) ... 78

*v United States v. Durham, 319 F.2d 590, 592 (4th Cir., 1963) ... 103

United States v. Edwardo-Franco, 885 F.2d 1002, 1010 (2d Cir., 1989) ... 107, 133

United States v. Edwards, 631 F.2d 1049, 1051 (2d Cir., 1980) ... 108

United States ex. rel. Williams v. Lane, 645 F. Supp. 740 (N.D. Ill., 1986) ... 76

United States v. Falcone, 311 U.S. 205, 210 (1940) ... 83

United States v. Falley, 489 F.2d 33 (2d Cir., 1973) ... 111

United States v. Fatico, 579 F.2d 707 (2d Cir., 1978) ... 133

United States v. Felix-Jerez, 667 F.2d 1297, 1300 (9th Cir., 1982) ... 96

United States v. Fields, 466 F.2d 119 (2d Cir., 1972) ... 84

United States v. Frasch, 818 F.2d 631 (7th Cir., 1987) ... 115

United States v. Fredericks, 857 F.2d 733 (11th Cir., 1988) ... 64

United States v. Gavira, 740 F.2d 174, 184 (2d Cir., 1984) ... 58, 69, 84

United States v. Geaney, 417 F.2d 1116, 1121 (2d Cir., 1969) ... 66

United States v. Gelb, 944 F.2d 52 (2d Cir., 1991) ... 136

United States v. Giese, 597 F.2d 1170 (9th Cir., 1979) ... 111

United States v. Giglio, 405 U.S. 150 (1972) ... 104

United States v. Gillilan, 288 F.2d 796 (2d Cir., 1961) ... 84

United States v. Gillis, 942 F.2d 707, 709-710 (10th Cir., 1991) ... 116

United States v. Gleason, 616 F.2d 2 (2d Cir., 1979) ... 84

United States v. Glenn, 828 F.2d 855 (1st Cir., 1987) ... 88

United States v. Goldberg, 587 F. Supp. 302, 310 (S.D.N.Y., 1984), rev'd on other grounds *vi 756 F.2d 949 (2d Cir., 1985) ... 85

United States v. Goldfaden, 959 F.2d 1324 (5th Cir., 1992) ... 106

United States v. Golitschek, 808 F.2d 195 (2d Cir., 1986) ... 107

United States v. Harvey, 991 F.2d 981 (2d Cir., 1993) ... 68, 108, 110

United States v. Harwood, 998 F.2d 91, 95 (2d Cir., 1993) ... 117-118

United States v. Hathaway, 798 F.2d 902, 910 (6th Cir., 1986) ... 87

United States v. Haves, 553 F.2d 824, 827 (2d Cir., 1977) ... 79

United States v. Haynes 16 F.3d 29, 32 (2d Cir., 1994) ... 118

United States v. Hayward, 6 F.3d 1241, 1254-55 (7th Cir., 1993) ... 103

United States v. Helmsley, 941 F.2d 71 (2d Cir., 1991) ... 127

United States v. Hoffman, 964 F.2d 21, 24 (D.C. Cir., 1992) ... 80-81

United States v. Hurley, 746 F.2d 725, 727 (11th Cir., 1984) ... 116

United States v. Jacobson, 112 S.Ct. 1535, 1541 (1992) ... 111

United States v. James, 609 F.2d 36 (2d Cir., 1979) ... 94

United States v. Jones, 900 F.2d 512, 520-21 (2d Cir., 1991) ... 93

United States v. Jones, 30 F.3d 276 (2d Cir., 1994) ... 62

United States v. Johnson, 371 F.2d 800, 807 (3rd Cir., 1967) ... 81

United States v. Johnson, 513 F.2d 819, 821-23 (2d Cir., 1975) ... 63, 66, 68-69

United States v. Johnson, 968 F.2d 768 (8th Cir., 1992) ... 76

*vii United States v. Jones, 30 F.2d 276, 281-282 (2d Cir., 1994) ... 58, 62

United States v. Kahn, 381 F.2d 824 (7th Cir., 1967) ... 86

United States v. Kilpatrick, 821 F.2d 1456 (10th Cir., 1987) ... 86

United States v. Konovsky, 202 F.2d 721 (7th Cir., 1953) ... 108

United States v. Kyles, 40 F.2d 519, 524 (2d Cir., 1994) ... 116

United States v. Lamere, 980 F.2d 506 (8th Cir., 1992) ... 135

United States v. Lane, 883 F.2d 1484, 1499 (10th Cir., 1989) ... 108

United States v. Lanza, 790 F.2d 1015, 1020 (2d Cir. 1986) ... 93

United States v. Lawson, 683 F.2d 688 (2d Cir., 1982) ... 94

United States v. Leonard, 524 F.2d 1076, 1091 (2d Cir., 1975) ... 108

United States v. Lindsay, 985 F.2d 666 (2d Cir., 1993) ... 135

United States v. Maldonado-Rivera, 922 F.2d 934 (2d Cir., 1990) ... 83, 87, 97-99, 101

United States v. Manton, 107 F.2d 834, 839 (2d Cir., 1938) ... 61

United States v. Marchese, 438 F.2d 452 (2d Cir., 1971) ... 71

United States v. Martinez, 667 F.2d 886 (10th Cir., 1981) ... 89

United States v. Mazzilli, 848 F.2d 384 (2d Cir., 1988) ... 104

United States v. McElroy, 910 F.2d 1016 (2d Cir., 1990) ... 75

United States v. McGovern, 499 F.2d 1140, 1142 ... 103

United States v. McKeon, 738 F.2d 26, 30 (2d Cir., 1984) ... 86

*viii United States v. Mescaine-Perez, 849 F.2d 53 (2d Cir., 1988) ... 127

United States v. Mickens, 926 F.2d 1323 (2d Cir., 1991) ... 81

United States v. Millan-Colon, 834 F.Supp. 78 (S.D.N.Y., 1993) ... 126

United States v. Mollica, 849 F.2d 723, 729 (2d Cir., 1988) ... 87

United States v. Monk, 15 F.3d 25 (2d Cir., 1994) ... 134

United States v. Morlong, 531 F.2d 183, 190 (4th Cir., 1975) ... 96

United States v. Mote, 582 F.2d 654, 662 (2d Cir., 1978) ... 90-91

United States v. Nazzaro, 472 F.2d 302, 312 (2d Cir., 1973) ... 81-82, 106

United States v. Nusraty, 867 F.2d 759, 764 (2d Cir., 1989) ... 62, 73

United States v. Palta, 880 F.2d 636 (2d Cir., 1989) ... 127

United States v. Perholtz, 842 F.2d 343 (D.C. Cir., 1988) ... 74

United States v. Pisani, 773 F.2d 397 (2d Cir., 1985) ... 81

United States v. Polland, 994 F.2d 1262 (7th Cir., 1993) ... 135

United States v. Porter, 41 F.3d 68 (2d Cir., 1994) ... 136

United States v. Potamitis, 739 F.2d 784, 790 (2d Cir., 1984) ... 119

United States v. Prescott, 920 F.2d 139 (2d Cir., 1990) ... 127

United States v. Provenzano, 615 F.2d 37 (2d Cir., 1980) ... 84

United States v. Reed, 437 F.2d 57 (2d Cir., 1971) ... 92

United States v. Restrepo, 936 F.2d 661, 667-668 (2d Cir., 1991) ... 134

United States v. Enrique Rivera, 22 F.3d 430 (2d Cir., 1994) ... 135

*ix United States v. George Rivera, 971 F.2d 876 (2d Cir., 1992) ... 135

United States v. Ricardi, 174 F.2d 883, 889 (3rd Cir., 1949) ... 96

United States v. Robin, 545 F.2d 775 (2d Cir., 1976) ... 128

United States v. Robinson, 545 F.2d 301, 305-06 (2d Cir., 1976) ... 79

United States v. Robinson, 560 F.2d 507, 514 (2d Cir., 1977) ... 107

United States v. Robinson, 635 F.2d 981 (2d Cir., 1980) ... 81

United States v. Roldan-Zapata, 916 F.2d 795 (2d Cir., 1990) ... 81

United States v. Romano, 825 F.2d 725 (2d Cir., 1987) ... 129

United States v. Rosa, 11 F.3d, 315, 343 (2d Cir., 1933) ... 106

United States v. Rosenblatt, 554 F.2d 36 (2d Cir., 1977) ... 83-84

United States v. Sarro, 742 F.2d 1286 (11th Cir., 1984) ... 70

United States v. Sacerio, 952 F.2d 860 (5th Cir., 1992) ... 175

United States v. Salameh, 856 F.Supp. 781, 784 (1994) ... 89, 124, 128

United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir., 1973) ... 85

United States v. Salmon, 944 F.2d 1106, 1113 (3rd Cir., 1991) ... 72-3, 88

United States v. Seale, 20 F.3d 1279 (3rd Cir., 1994) ... 136

United States v. Sehnal, 930 F.2d 1420 (9th Cir., 1991) ... 76

United States v. Shaw, 829 F.2d 714 (9th Cir., 1987) ... 74

United States v. Shyllon, 10 F.3d 1 (D.C. Cir., 1993) ... 94, 103

*xUnited States v. Sleight, 808 F.2d 1012 (3rd Cir., 1987) ... 136

United States v. Solivan, 937 F.2d 1146 (6th Cir., 1991) ... 59, 76

United States v. Soto, No. 94-1021, (2d Cir., February 10, 1995) ... 128

United States v. Stevens, 985 F.2d 1175 (2d Cir., 1993) ... 135-136

United States v. Stroud, 893 F.2d 504 (2d Cir., 1990) ... 135

United States v. Studley, No. 1228 (2d Cir., February 13, 1995) ... 132

United States v. Sullivan, 694 F.2d 1348 (2d Cir., 1982) ... 127

United States v. Tarantino, 846 F.2d 1384 (D.C. Cir., 1988) ... 68

United States v. Terry, 702 F.2d 299, 321 (2d Cir., 1983) ... 63

United States v. Terselich, 885 F.2d 1094 (3d Cir., 1989) ... 73

United States v. Thai, 29 F.3d 785, 813 (2d Cir., 1994) ... 108

United States v. Thompson, 37 F.3d 450, 452-54 (9th Cir., 1994) ... 80

United States v. Torkington, 874 F.2d 1441 (11th Cir., 1989) ... 133

United Stetes v. Tortora, 994 F.2d 79 (2d Cir., 1993) ... 136

United States v. Towne, 870 F.2d 880, 886 (2d Cir., 1989) ... 92

United States v. Treadwell, 760 F.2d 327 (D.C. Cir. 1985) ... 84-85

United States v. Tutino, 883 F.2d 1125, 1132 (2d Cir., 1989) ... 119

United States v. Valentine, 820 F.2d 565 (2d Cir., 1987) ... 74

United States v. Villegas, 911 F.2d 623 (11th Cir., 1990) ... 70

*xi United States v. Weiss, 752 F.2d 777, 787 (2d Cir., 1985) ... 87

United States v. Wexler, 838 F.2d 88, 91 (3rd Cir., 1988) ... 64, 73

United States v. Whitehorn, 710 F. Supp. 803, 817 (D.D.C., 1989) ... 86

United States v. Whitworth, 856 F.2d 1268 (9th Cir., 1988) ... 68

United States v. Wong, 40 F.3d 1347 (2d Cir., 1994) ... 135-136

United States v. Zackson, 12 F.3d 1178, 1184 (2d Cir., 1993) ... 96

Webb v. Texas, 409 U.S. 95 (1972) ... 89

Wilson v. United States, 352 F.2d 889, 892 (8th Cir., 1965) ... 81

Zafiro v. United States, 506 U.S. 534, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993) ... 117-120

Statutes:

18 U.S.C. § 371 ... 71

18 U.S.C. § 924(c) ... 134

18 U.S.C. § 3501 ... 60

18 U.S.C. § 3553(a) ... 129

18 U.S.C. § 3579(e)(1) ... 137

18 U.S.C. § 3664 ... 136

Rules:

F.R. Crim. P. 7(f) ... 85

F.R. Crim. P. 14 ... 117

F.R. Crim P.32 ... 127, 129

F.R. Evid. 401 ... 68, 91, 108, 110, 119

F.R. Evid. 403 ... 68, 91, 107-109 111, 119

Fed.R.Evid. 404(b) ... 79

*xii F.R. Evid. 602 ... 68

F.R. Evid. 608 ... 79, 93

F.R. Evid. 611(c) ... 103

F.R. Evid. 609(a) ... 79

F.R. Evid. 701 ... 68

Guidelines:

U.S.S.G. § 2A1.1 and Application Note 1 ... 134

U.S.S.G. 2A1.1 ... 133

U.S.S.G. 2k1.4 ... 133

U.S.S.G. § 3B1.2 ... 134

U.S.S.G. § 3C1.1 ... 135

Constitution: Throughout

Const. Amend. I ... 110, 118

Const. Amend. V ... 60, 75

Const. Amend VI ... 60, 90, 116

Treatises:

Cleary, McCormick On Evidence § 272 (1984) ... 80

1 L. Sand, et al., Modern Federal Jury Instructions -- Criminal, Paragraph 5.01, Instruction S- ... 79

3 Wigmore on Evidence § 725 (Chadbourn rev. ed. 1970) ... 98

*1 STATEMENT PURSUANT TO RULE 28(a)

PRELIMINARY STATEMENT

This is an appeal from a judgment of the United States District Court for the Southern District of New York (Duffy, J) rendered May 24, 1994, convicting appellant, and three co-defendants, Mohammad Salameh, Nidal Ayyad, and Ahmed Ajaj, after trial by jury, of the crimes of conspiracy to damage buildings by use of an explosive device (18 U.S.C. § 371), explosive destruction of property (18 U.S.C. § 844i), explosive destruction of government property (18 U.S.C. § 844f.), interstate transportation of explosives (18 U.S.C. §§ 33, 34), assault upon a federal officer (18 U.S.C. § 111), and using a destructive device during a crime of violence (18 U.S.C. § 924(c), and sentencing them each to a cumulative total sentence of 240 years imprisonment without parole (180 years on the first six of the offenses above, and 60 years additional for two counts of the last above enumerated offense), a supervised release term of five years, a fine of $250,000, and restitution of $250,000,000. Jurisdiction in this Court is pursuant to 18 U.S.C. § 3742(a)(2) and 28 U.S.C. § 1291, in the District Court pursuant to 18 U.S.C. § 3231. Timely notice of appeal was filed, and this Court assigned Lawrence Mark Stern as counsel on appeal.

ISSUES PRESENTED

1. Whether the evidence against appellant was irrelevant, prejudicial, violative of Constitutional rights and the rules of evidence, and insufficient as a matter of law.

2. Whether the prosecution's misrepresentations in opening and summation, compounded by the court's deletions of *2 relevant testimony from read-backs requested by the jury, and the prosecutor's testimony and vouching inflaming the jury with the fear of terrorism, and shifting the burden of proof deprived appellant of a fair trial.

3. Whether the Court's charges that circumstantial evidence is what everyone knows about a bully, that defense counsel's arguments were wrong and that "piles of stuff" not in evidence were found in appellant's apartment, and that conspiracy to bomb the World Trade Center did not require specific intent and knowledge, deprived appellant of the constitutional rights to fair trial and due process of law, and to grand jury indictment and fair notice of the charges against him.

4. Whether the trial Court's ex Parte agreement with the prosecution to conceal the evidence, its misrepresentation to defense counsel, and the prosecutor's misrepresentation to the jury that a witness was not a paid government informant on this case, the Court's concealment of other relevant facts about prosecution witnesses, and its preclusions or cross-examination constituted reversible error in violation of appellant's Fifth and Sixth amendment rights to effective counsel, due process, and cross-examination, and his due process right to an impartial judge.

5. Whether the prosecutor's in-court prompting of a witness with a suggestive photospread to identify appellant instead of a juror denied appellant a fair trial and due process of law.

6. Whether the prosecutor's coercive questioning of his *3 witness to obtain desired answers, the Court's interruption of cross-examination on the subject of the witness' resultant lie, and the Court's instructions ameliorating the incident and supplying neutralizing testimony, violated the rules of evidence and deprived appellant of the constitutional rights to cross-examination, fair trial, and due process of law.

7. Whether anger, fear, and hatred against appellant were instilled in the jury by days of victims' testimony, gruesome autopsy photos, medical examiner testimony, and oral recitations of hate literature irrelevant to guilt and denying appellant a fair trial and due process of law.

8. Whether the Court's refusal to conduct the requested probing voir dire of the jury on bias against Muslims and reaction to hate literature, where the crime charged was violent, and the appellant was a member of a racial, ethnic and religious group different than the jurors, and the prosecution presented inflammatory evidence consisting of literature advocating religious wars in the name of Islam, denied appellant the Sixth amendment right to an impartial jury.

9. Whether appellant's joinder at a trial with one co-defendant whose luggage contained hate literature which was introduced against appellant and with another defendant who argued that an associate of appellant's had masterminded the plot to blow up the World Trade Center deprived appellant of a fair trial and due process of law.

10. Whether appellant was denied counsel of choice, effective assistance of counsel, and an impartial judge at *4 sentencing, and whether the sentence violated statutes, guidelines and the constitutional rights to due process of law and against double jeopardy.

STATEMENT OF FACTS

I. The Prosecution's Case: Circumstantial Evidence of Association; No Knowledge or Intent to Bomb World Trade Center; Denial of Voluntariness Hearing; Suggested In-Court Identification; Irrelevant Evidence; Opinions About A Bomb and It's Container

Ahmed Ajaj and Ramzi Yousef arrived in the United States on the same flight from Pakistan on September 1, 1992, six months before the World Trade Center explosion on February 26, 1993 (2350-2700). [FN1] Ajaj was carrying a suitcase containing Islamic literature and some manuals about making bombs. He was detained and later arrested for an INS offense. He remained in custody from the moment of his arrival in the United States until March 1, 1993, several days after the World Trade Center explosion, and thereafter he continued to report to his parole officer.

FN1. References are to pages of the trial transcript.

Ramzi Yousef entered the United States. He and Mohammad Salameh rented various apartments in Jersey City, New Jersey, finally settling at apartment C at 251 Virginia Avenue (2839-50). In October, 1992, Salameh and Nidal Ayyad opened a joint bank account with a deposit of $8,500 (2780-95). Appellant Mahmud Abouhalima had a separate and unrelated bank account in a different branch of the same bank in a different state. (2789-2826).

Telephone records from the Virginia Avenue apartment *5 for the period November through January, 1992, show calls to chemical companies, to appellant's place of employment, to his apartment in Avenal, New Jersey, and to others, including a Mahmud A. in Woodbridge, New Jersey. The phone records also show calls to the Virginia Avenue apartment from telephone numbers registered to appellant (6518-50, 6632-6730).

Yousef and Salameh bought chemicals, including urea and nitric acid, from City Chemical Company and other places. Deliveries of the chemicals were ordered to a storage locker, Space Station Storage, 69 Mallory Street in Jersey City (348298, 3675-3719, 2966-3033).

Ashraf Moneeb lived in the Virginia Avenue apartment with Salameh and Yousef, whom he also knew as Rashed. Moneeb lived in the living room and Rashed and Salameh in the bedroom. The phone was in the bedroom. Moneeb did not spend much time in the apartment. He went to school during the day and worked at night (2853-54, 2879). On some occasions when he was home, Musa and Abdul Rahman visited with Salameh and Rashed. They stayed in the bedroom with the door closed. Appellant also visited about three times, and the bedroom door was kept closed. The door was closed as a courtesy to Moneeb, who wanted his privacy and needed to study (2839-60, 2874, 2888). Over objection to the statement which did not qualify as co-conspirator hearsay, Moneeb testified that Rashed told Moneeb that "Mohammad" Abouhalima, "could possibly help them out to find a new apartment." They said they found one in Newark and moved (2861). Mohammad Abouhalima is appellant's brother (5605-06, 5542, 8968). He was present at appellant's apartment *6 when it was searched by the FBI one month after the World Trade Center explosion. Like appellant he is tall and has red hair and drove a limousine (5605-06).

On December 19, "992, appellant visited a gunshop near his home in Avenal, New Jersey and bought smokeless gun powder. The price for the ammunition itself was too high, so appellant bought only the powder in order to reload the ammo which was used for target shooting. The brand of powder which the gunshop sold was Hodgdon (3050-58). No guns or ammunition were found in appellant's apartment when it was searched three months later (5583-84, 5598-5600). Smokeless powder, not the same powder as that purchased by appellant but the same brand, in a different container, and mixed with another chemical, was found after the World Trade Center explosion in the Space Station Storage locker rented by Salameh and Yousef (3047-50, 6912, 6962-63). Objections to the testimony about appellant's purchase and to the absence of guns in his apartment were overruled (3047-50, 6286-88, 5598-5600).

In January, 1993, Salameh rented an apartment at 40 Pamrapo Street in Jersey City. There was no refrigerator in the apartment (3323). He moved out at the end of February (3320-54). After Salameh moved in, the super at the building saw a few cars in the driveway, including a black Lincoln. This was not unusual because the super knew someone in the neighborhood who drove a Lincoln (3343, 3372). The super told the FBI that he didn't see a Lincoln at 40 Pamrapo often, and he could not remember the plates on the Lincoln, but at trial he testified that they were New York plates (3345, 3378-79). *7 The driver of the Lincoln was a "big guy" (3345). [FN2] On the day Salameh moved out at the end of February, there was a station wagon in the driveway; no van (3347, 3354). After Salameh moved, the super entered the apartment and noticed nothing suspicious, but there were some blue spots on the walls (3351-54).

FN2. Appellant drove a Lincoln town car, gray in color. In January, 1993, he changed Lincolns to one which was dark blue (5871-72). Appellant used the car to carry passengers for a limousine service (5866-72).

Carl Butler, a tenant in the apartment above the one rented by Salameh at 40 Pamrapo, noticed that a red haired man visited several times a week. That visitor had the "weirdest" red hair the witness had ever seen but was not someone in the courtroom during Butler's testimony (3386-92). The visitor was about 45 years old dressed like a chauffeur, and drove a dark colored town car with Taxi and Limousine plates. On one occasion the visitor seemed agitated about something which was inside a station wagon parked in the driveway. He "barked" something in a language which Butler did not understand. Others drove away in the station wagon, and the visitor followed them in another car (3398- 3400). Butler never mentioned this "barking" incident during the fifteen interviews he had with the FBI prior to trial (3415-16). Butler testified that the apartment was quiet and that he did not smell the fumes that FBI experts said would emanate from the making of explosive chemicals (8112, et. seq.).

FBI search teams went to 40 Pamrapo on March 6, eight *8 days after the World Trade Center explosion, and recovered various items which were then submitted to chemical analysis. Traces of various chemicals such as nitroglycerine and urea nitrate which could be used in explosives were found (6855-63, 6968-7003). Although the FBI chemist concluded from his observations of 40 Pamrapo that, "either mixing or storage or presence of some sort of materials such as acid and what not were actually within that apartment" (6992), he conceded that FBI evidence gathering procedures permitted contamination of the questioned items with chemicals transferred from the search team and their evidence containers (7149-50, 7126-30, 7148-49, 7172). The search team did not take precautions against contamination (6861-62, 6209- 12). No quantity measures were done to determine how much of the trace materials were present on the questioned items or how much had been present in the various evidence containers or on the gatherers themselves (7151). The chemist even admitted that his positive conclusion of the presence of nitroglycerine was contradicted by some of the data (7121-26, 7131-34). At one point he testified, "There's not proof of the material being there" (7137), but claimed he had done some additional test to confirm the nitroglycerine (7304- 07). He testified that the bluish color on the walls was from something eating into the walls and that there was corrosion on the doorknobs, (6993-94), but he also testified that handling of nitric acid over time would have caused noticeable burns on the hands, of which there was no evidence about the hands of the defendants in this case (7155-56).

*9 Appellant's apartment was searched by the FBI in August, 1993, and among reams of clothing seized and subjected to chemical analysis, one shoe was found by an FBI chemist to have traces on it of sulfur ions (7016-17, 7160-94, 5622- 26). The presence of the sulphur ions and a small crater in the surface of the shoe led the chemist to conclude that this evidence "was consistent" with sulfuric acid being on the shoe (7017). Sulfuric acid is a component of nitroglycerine as well as of common automobile batteries. The sulfate chemical is used in the dyeing and tanning of the shoe itself, and it is present in magnesium sulfate which is common Epsom salt (7160-67). No other clothing from the apartment contained traces of any chemical which could even arguably be deemed chemical explosive residue, and none were found on or in appellant's 1988 Lincoln (7182-84). Nitroglycerine residues were not found at the World Trade Center after the explosion, even though there was extensive swabbing of surfaces which would have captured the residue (7114-21).

On March 4, a week after the World Trade Center explosion the FBI searched an apartment at 34 Kensington in Jersey City, which had been rented by Salameh and Yousef in the Fall of 1992, but which was inhabited by others at the time of the search. In the trash the FBI found a torn map indicating directions to 65 Baldwin Street (6081-6103, 6121). The owner of the Baldwin building identified a man in a photograph (GE-90-I) as Mohammad Abdul Hammed, the tenant of the second floor apartment during November '92 through November 93 (6447-49). The photograph shows two others including El Sayid Nossair *10 (6560). In April, 1993, a refrigerator at 65 Baldwin was swabbed by the FBI for chemical residues and swabs were found to contain traces of nitroglycerine (7005-15). Fingerprints of Ramzi Yousef were also found on the refrigerator (7733). Over objection on relevance grounds, but upon offer by the prosecution that they would prove that the refrigerator at 65 Baldwin had been at 40 Pamrapo, a receipt (GE755) for the 1991 purchase of the refrigerator by appellant was permitted in evidence, but never introduced. The prosecution also never introduced evidence that the refrigerator had been at 40 Pamrapo, but the receipt, which had been found in appellant's apartment pursuant to a search conducted by the FBI on March 19, 1993, three weeks after the World Trade Center explosion, remained in the case as if it was in evidence against appellant (5583-94). The government argued that appellant had purchased the refrigerator which was used to house explosives for the bombing of the World Trade Center, but no nitroglycerin residues were found at the explosion site (7114-21).

Wahid Moharam, who operated a limousine service out of the Sheraton Hotel in Woodbridge, New Jersey, testified that appellant drove for him "from time to time." (5870). In mid-January. 1993, Moharam bought a van and took appellant with him to look at it. Appellant said the van was nice and asked several times thereafter to borrow it. Appellant also offered to have the van registered in his name, because he had limousine plates available and Moharam could not otherwise register it because it was not fully payed for. One week prior to the explosion at the World Trade Center appellant asked to *11 borrow the van again, but it still was not registered (5877-79, 5889-90).

Moharam was a paid informant for the FBI. He'd been paid $550 on a previous case in 1991. On this case he was expecting the FBI to make up for the loss of his limousine business which he attributed to his involvement in this case and his employment of appellant. All his other business ventures before the limousine service had also failed. He was making $2,000 per week operating the limousine service. In November, 1993, two months before his testimony, the FBI gave him $5,500 and promised him $500 per month after the trial in addition to $1,500 per month for rent. He hadn't filed income tax returns for 1992 and 1993. He met with the FBI ten or more times and on each occasion they went over with him the same questions and answers about this case (5869, 5890-5913, 5940- 52).

In January, 1993, Salameh and Yousef were in a car accident which required Yousef's hospitalization for several days. Appellant drove Salameh to the garage to retrieve his belongings from the wrecked car (3067-3114, 3157-65), and later he picked up Yousef upon his discharge from the hospital (3117-49). Throughout January, according to telephone records, there were calls to and from 40 Pamrapo to numbers registered to appellant. Appellant's credit card number was used for calls from the pay phone near 40 Pamrapo (6518-50, 6632- 6730).

According to the initial testimony of a gas station attendant, Willie Moosh, two of the trial jurors pulled into his gas station in the early morning hours of February 26, the *12 day of the World Trade Center explosion. One was driving a yellow van and the other, who paid for the gas, a passenger vehicle. Moosh then changed his testimony and identified Salameh and appellant, respectively. The change occurred after an overnight break in his testimony and after the prosecution had been permitted to show Moosh his prior photo spread identifications of Salameh and appellant (3996-5042, 5229-30). See discussion, infra.

On February 26, the same day as the explosion, appellant called the Bell Atlantic telephone company to complain that all the calls on his credit card bill for the period ending February 16 had been unauthorized. The bill was probably leceived on the 26th, because it takes ten days for a bill to reach the customer through the mail. A previous attempt to cancel the card had been made on February B. The telephone company honored appellant's request and gave him credit for all the calls (6545-51).

At six or seven P.M. in the evening of February 26 or 27, the evening of the World Trade Center explosion or the evening of the day after the explosion, Wahid Moharam encountered appellant at the limousine service office in the Sheraton Woodbridge. Over defense objection, Moharam was allowed to answer in response to the question "What was he doing there?" that appellant "walked in nervous." Over objection, Moharam was allowed to answer in response to the question "What did he look like?" that appellant was "very, very like scared, very nervous." (5880-82, 5850, 5901). Over objection, Moharam was allowed to testify that he asked *13 appellant what had happened and appellant replied that there was an accident, the car was okay, but somebody got hurt. Moharam got a glass of water for appellant who pushed Moharam and fell to the floor in prayer, something appellant had not done before in the office. Appellant refused to talk about the accident and left the office (5880-82). Moharam testified that appellant did not have a job that evening (5902), and that the prayers could have been the "Suna" or voluntary prayers which a devout Muslim could make at that time during the holy Ramadan period of fasting (5902, 5954). Appellant did not answer a beep for a job the next day, so Moharam went to his apartment where appellant said he had a problem and couldn't do the job (5882- 86).

In overruling objection to the testimony about nervousness and prayer, the Court opined, "The fact that he prays doesn't mean he's guilty of anything ... He's [Moharam] the guy who claims he knows. He can be cross-examined about it. That's all I can do" (5850-52).

Travel agency documents and airline tickets evidence that appellant travelled to Jedah, Saudi Arabia on March 2, five days after the explosion, and that his wife and four children followed a week later. Appellant's ticket permitted additional travel to Khartoum in the Sudan, but there are no documents which verify that that portion of the ticket was actually used (5530-35, 5547-50, 5552, 5557). For someone who wanted to fly from New York to Cairo and save money, the flight from New York to Khartoum through Saudi Arabia, with a purchase in Khartoum of a ticket for the last leg to Cairo, was much *14 cheaper (5546-47). The ticket was arranged by Mohsan Shalibi who actually accompanied appellant to the travel agency office to ensure his commission on the ticket (5536-38, 5542).

Appellant's airline flight to Saudi Arabia took place during the holy period of Omhra-Haj when Muslims must go to Mecca in Saudi Arabia at least once in a lifetime, and it was also the last ten days of Ramadan when Muslims commonly make the pilgrimage. Many similar airline reservations were made at that time, due to the significance of the period in a devout Muslim's life (5538-42). The airline documents evidence that appellant could only have had carry-on luggage (5554). The Omhra-Haj ritual requires Muslims to wear only a single cloth (5553-55).

On March 24, 1993, the FBI placed appellant on an airplane at the Cairo airport and flew him to the United States under arrest for the World Trade Center bombing. When he was placed on the plane he had bandages around his head covering his face down to his nose. Underneath the bandages was a sleeping mask. Cotton was stuffed in his ears and he was handcuffed (5957-60, 5966-68). On the plane, the restraints were removed, and appellant was given advice of his constitutional rights. He did not respond but rather fell asleep. Sometime thereafter he was "asked of his knowledge of 40 Panrapo" (emphasis added), and he replied that the pronunciation was incorrect. He fell asleep and upon awakening said, "the name of that street is Bainbridge." Shortly after that he asked if the interrogator "knew an individual by the name of Rashid." (emphases added). The interrogator replied, *15 "You mean Rashed ... Rasheed." (emphases added), and appellant replied, "Rashid ... Raashiid" (emphasis added). Throughout the twelve hour flight to the United States appellant continued to alternately fall asleep and awaken (5957-82). There was no testimony that appellant was asked to comment on the World Trade Center bombing.

At an in-chambers conference prior to the testimony of the detective who brought appellant back on the plane from Egypt, defense counsel asserted that appellant had been in custody in Egypt and tortured prior to making the statements on the plane. Counsel asked the Court to hold a hearing and to make a voluntariness determination. The Court replied, "Well, I don't know what is going to be adduced from this," and no more was said about it (5933-34). Counsel's failure to follow up on this motion is the subject of a separate motion filed in this court for remand on grounds of ineffective assistance of counsel and new evidence.

On March 19, 1993, appellant's apartment was searched and ten to twenty boxes of material were seized. Introduced against appellant, over objection and without evidence that it was among those things seized from appellant's apartment, was a magazine containing an article entitled "Demolition and Destruction of Buildings." Appellant's fingerprint was on a page of the article (7217-18, 7734, 7779, 5583-5626). Among the hundreds or thousands of items and scores of places examined for fingerprints in this case, the one on the magazine was the only one of appellant's discovered. The magazine was dated, May, 1990, and contained other articles about fasting *16 during Ramadan, Kashmir, and the civil war in Afghanistan (7564-67). It is a magazine generally available commercially (7447-49, 7467-68).

A structural engineer who participated in the original design of the World Trade Center testified that on February 26, 1993, immediately after what was believed to be a transformer explosion but which could not have been caused by any system in the building itself, there was a conflict between the police and the engineers about how to deal with the scene. The safety engineers prevailed initially and went in first to shore up the building. They had to cut holes and remove debris, some of which fell into the crater made by the explosion (664- 73, 685, 768-84). FBI and ATF agents who went in later had to "dodge shifting debris" and doubted that the scene was in its original undisturbed state (846, 1427).

The FBI explosives and tool mark expert did not arrive at the World Trade Center until the day after the explosion (7958). He walked around the site and concluded from the configuration of the debris that the explosion had been caused by a bomb of a certain velocity and that only a fertilizer based explosive such as ammonium nitrate or urea nitrate could have been responsible (7959-75, 8137). The FBI chemist could not confirm that urea or ammonium nitrate were the components of the bomb, even though, he admitted, the FBI was looking specifically for those chemicals at World Trade Center because they had been discovered in the Space Station Storage locker rented by Salameh and Yousef (6900-08, 6884).

Several days later when the bomb expert was shown a *17 piece of frame from a vehicle (GE3028) he concluded that it came from the vehicle that housed the bomb. Eis conclusion was based on the facts that none of the other pieces of metal he had seen had had as much explosive damage and that this piece also had a traceable vehicle identification number on it (7999). There was no objective proof, other than his opinion, that this and other pieces of metal came from the bomb container (8077-79). Where the pieces were found also influenced his opinion (8018-33), but ricocheting, rather than the direct explosive source, could have accounted for where the pieces landed (8073). There were many other yellow vans in the area of the explosion (8074), and an expert on vans testified that he could not say whether the pieces attributed to the bomb container came from a 350 or 250 series Ford Econoline van (1871-80, 1755-68). Nonetheless the FBI bomb expert testified that upon looking at the piece with a VIN number, he concluded that it came from a 350 series, the same kind of Econoline van rented by Salameh a few days prior to the explosion (7999-8021).

The metal frame piece with the VIN number, LHA75633 (GE-302B) was found two days after the explosion by a Bureau of Alcohol Tobacco and Firearms expert, Joseph Hanlin. He found it "in the dark", by the light of his flashlight at the lip of the crater made by the explosion (807-29, 847, 863). He knew immediately that the piece came from the vehicle which had contained the bomb (829), even though he conceded that any conclusion about that would have to have depended on the reports of other agents, a chemist, and other evidence (953). *18 When he found the piece he was in the midst of "dodging shifting debris" all around him and couldn't keep track of the time (846). Agent Hanlin claimed that a gag order prevented him from discussing his discovery, but he told Nightline and a number of other interviewers anyway (853).

Agent Hanlin's conclusion that the piece with the VIN number came from the source of the bomb was based on the fact that it was intact (951-53), but a crushed van with an intact engine found south of the crater was not chosen as the likely bomb container (1557). An FBI bomb expert, Kevin G. Miles, who was also sifting the debris for pieces of evidentiary value, disagreed with Agent Hanlin and rejected intact items as not being part of the explosive containing vehicle (1040). Agent Miles chose 193 separate pieces of evidentiary value based on his theory which contradicted Agent Hanlin's, but only three of those were chosen to be included as parts of the van which supposedly housed the bomb. The other 190 pieces, may have had writing on them like the ones introduced in evidence (1027-34, 1035-36). Agent Miles was instructed to find pieces of a Ford van (1040). Two intact Ford mini vans were found on the B-2 level near the crater (1560).

Approximately twenty other FBI agents testified to sifting debris and discovering, or recording the discovery of, various pieces of the Ford van. To guide their search, a yellow Ford van of the same type as rented by Salameh from Ryder Rental was parked at the site (955-1588, 1183-85). They were told that arrests had been made and to look for pieces of a Ford van, and when they found pieces with that logo they *19 retrieved them as evidence (1004-16, 1136-37, 1146-53, 1216). Many of the agents found car parts, including pieces with Ford emblems, which they retrieved, but which they were not asked to identify in court (1447-48, 1314, 1249, 1261, 1144-47, 1020-24, 966). Although location was a factor in the decision to segregate from the debris a piece of metal as a part of the bomb container, there were instances of evidence log recorded locations different from the locations recollected by the retrieving agents (972, 984) of recorded debris on which there were no identifying marks to refresh the retriever's recollection of where it came from (1071-80), of the omission of a record of the name of the retriever (1207-08), of neither the log nor the retriever providing the information as to where in the crater or by whom a particular piece was found (1140-43, 1457-58), and of pieces produced for trial not in the same condition as when they were found (1549-50)

The agents had the complete discretion to pick and choose among the debris, and they discarded many pieces (1058) and employed contradictory theories in making their choices. One agent opined that an intact engine block would likely come from the explosives containing vehicle, yet he chose a small piece of an engine block as a part of that vehicle (1176-78). Another agent, acting on his own theory that the explosion was not an inside job, eliminated pieces of metal filing cabinet as parts of the explosives container. A World Trade Center employee whom he questioned said that metal filing cabinets had been in the office prior to the explosion (1423-24).

From the VIN number on the metal frame piece, an *20 agent for the National Insurance Crime Bureau determined that the piece came from a 1990 Ford Econoline truck reported stolen on February 26 (1629-45). The Parking attendant and the Manager of Port Authority vehicles parked at the World Trade Center garage testified that there were many vans and trucks parked there and several Ford vans in particular, that most of the Port Authority vans are painted yellow, and that one of them was totalled although its engine remained intact (237-64, 1652-72). The Power Train and Chassis Manager for the Design Analysis Department of Ford Motors identified several of the metal pieces retrieved by the agents as coming from either the Series 250 or 350 Ford Econoline van. The two types of vans look alike, but have different internal parts and load capacities. Only two of the parts, those with the recognizable VIN numbers, the left frame rail and the bottom of the near door, could be identified as coming from a Series 350 van (1755-1813, 1871-80).

The Director of Operations of the Consumer Rental Department of Ryder Rental vans testified that the VIN number from the metal pieces found at the World Trade Center belonged to a Ford Econoline 350 purchased by Ryder, licensed in Alabama with plate number XA-70668, and rented by Salameh on either February 23 or 26, according to ambiguous Ryder documents. Salameh bought the insurance at extra charge when he rented the van (1882-1911). The Ryder rental agent on Kennedy Boulevard in Jersey City, two blocks from Pamrapo Street, testified that he rented a van to Salameh, in Salameh's name on February 23. Salameh paid more of a deposit for a longer rental period than *21 a few days (3580-87, 3608-09).

Salameh returned to the rental agency the next day to have a broken mirror on the van replaced. On that same day, the prosecution claimed, according to Salameh's fingerprint on a World Trade Center garage parking stub, Salameh visited the garage at 1:58 P.M. (3511-71). However, the Assistant Manager of the Space Station storage locker testified that he saw Salameh there in Jersey City at 1:55 P.M., and that it was not possible to drive from there to Manhattan in three minutes (3809-11, 3853-56).

Employees of Space Station Storage testified that they saw Salameh and Yousef there on February 25 awaiting a shipment of compressed gas cylinders. When the truck with the cylinders arrived, the Assistant Manager stopped it because the storage facility did not accept such materials. As he was talking to the truck driver, he saw a yellow Ryder van, which may have had red lettering (the alleged bomb containing Ryder van had black lettering), pull into the facility, followed by a sedan (3813-20, 3873). Another worker at the facility, who was coached by the prosecution during a break after testimony that he did not see a van (see discussion infra), said he saw a van driven by Salameh but it was not followed by a second vehicle (3916). The facility's electronic entry keypad records two entries back-to-back at that time, but the entries could have been walk-ins or vehicles, or both, and the subjects of the entries went to two different storage lockers. Salameh and Yousef had only one locker (3733-58, 3847-52).

On the evening of February 25, as Salameh shopped in *22 a Shoprite supermarket, the van was stolen. He reported the theft at ten P.M. but the tag on the Ryder keys had the wrong license plate number. He tried to call the agency but it closed at 7:00 P.M. (5467-75, 3613, 3938-48). Salameh returned to the Ryder rental agency on February 26 at 2:00 P.M. to report that the van had been stolen on the 25th. Apparently the van was actually returned on the 26th, because there is a closing contract on the rental and the contract notes that the van was returned on that date (3589-97, 3601, 3658-59). The agent nonetheless told Salameh that he would need a police report in order to get his deposit back. The agent hired an attorney to protect his proprietary interest in his story about this rental to Salameh (3650-51).

On February 26, Salameh went to the Jersey City Police Department, reported the theft and showed the keys to the van (3961-68). On March 1, Salameh returned to the agency even though the police report was not ready. The agent advised him to wait for it. Salameh telephoned on March 4, and the agent told him to come and get his deposit (3599-3600) Salameh was arrested as he waited for a bus after exiting the rental agency. The Shoprite receipt for February 25 was still in his pocket as was his address book and wallet, and Nidal Ayyad's business card (5479-92). The arrests of his friend, and associates and the searches of their homes and workplaces followed.

Motions to dismiss for failure of the prosecution to establish a prima facie case and proof beyond a reasonable doubt were denied (8189, 8269).

*23 II. The Prosecution's Opening and Summations: Misrepresentation of Fact, Shifting the Burden, Supplying Testimony

There was no evidence for the following assertions made by the prosecution in their opening and closing statements: that appellant was seen at night at 40 Pamrapo, the so-called bomb factory, carrying buckets of explosive materials and bundles of yellowed newspapers (26, 8501-02 objection at 38-42); that appellant had been identified as the red haired man who was barking out orders to Salameh outside 40 Pamrapo [FN3] (8415-16, objection at 3392); that appellant was "the most frequent" of "very few" other visitors to Salameh's and Yousef's apartment on Virginia Avenue (8366); that on the flight from Cairo to the United States, appellant mentioned "Rashid," who was Ramzi Yousef, in response to a question about the World Trade Center (8477); that Moharam was not paid for information in this case (9056) and that appellant did not tell Wahid Moharam why he was upset on the night of the day after the explosion (8476, 9056). [FN4]

FN3. The witness Butler positively denied that anyone in the courtroom was the red haired man (3386-92).

FN4. In fact, Rashid was not Ramzi Yousef's name: his name was Rashed, and the mention did not follow a question about the World Trade Center, but was spontaneously uttered during a sleeping-waking stupor (5957-82). Appellant told Moharam that he (appellant) had been in an automobile accident (5880- 82).

The prosecution supplied testimony and misrepresented the record when in summation they told the jury, over objection (8966-68), that their witness Moneeb had testified, contrary to the record, that it was appellant, not his brother Mohammad, *24 who had offered to help Salameh and Yousef find the apartment at 40 Pamrapo. To bolster their claim,the prosecution falsified the record by claiming that Moneeb had actually identified appellant as the person who had made the offer (8966-68, 8981-82, 8892-93), and argued their personal knowledge that the transcript, which recorded Moneeb's naming of Mohammad, was itself false and should not be credited. in fact, Moneeb had identified appellant only as a visitor to the Virginia Avenue apartment (8966-68, 8981-82, 5605-06, 5542).

The prosecution shifted the burden to appellant by arguing over objection that the sulfur ions found on his shoe could only have come from spilt chemicals at 40 Pamrapo, because appellant had not offered evidence of the alternative innocuous sources which the prosecution's own chemist's had testified to (8408, 8424). With the objection, appellant asked the Court to give a curative instruction that he had no burden to prove how the sulfur ions got on the shoe. The Court said it would take care of it in its charge to the jury, but did not (8424).

III. The Charge: Circumstantial Evidence Presumes Guilt; Defense Counsel Singled Out by Name for Criticism; "Piles of Stuff" from Appellant's Apartment Offered in Evidence by the Prosecution; Knowledge and Intent to Bomb World Trade Center Not Necessary for Guilt

The Court gave two examples of circumstantial evidence which presumed guilt and proof of the ultimate fact, and which told the jury in effect that they could draw on their feelings about character and prior acts to discount innocent explanations for overt acts. Over objection (9195, 9198) the Court charged.

*25 ... we can draw a conclusion from the actions of the person, what his knowledge was, what his intent was. You do it all the time. You do it all the time. You do it from circumstantial evidence. When you were a kid and you were in school do you remember there was a bully? There was a bully in every kid's class I am sure of it. Some kid, he'd come along and he'd step on the toe of the guy beside him. The victim would yell and the bully would lo?? a- the teacher and say, oh, it was a mistake. I didn't mean to do that. That was an accident. Every other kid in the neighborhood knew that it was no mistake. Right? The direct evidence would be his declaration that it was a mistake and an accident. But by circumstantial evidence, ladies and gentlemen, you knew that it wasn't a mistake. It was him being a bully. You know, grownups are just big kids. We think the same way. You can conclude from circumstantial evidence what someone's intent or motive or knowledge was. Direct evidence is often misleading circumstantial evidence is quite sufficient. One thing though you should recognize, it still must be proved beyond a reasonable doubt.

(9135-36) [FN5]. The Court also repeated an example from its opening statement that Robinson Crusoe had to infer from a footprint that the island on which he shipwrecked was inhabited (9102-03).

FN5. The Court ruled that objections and motions by any one Defendant would automatically be applied to all, that a statement of reasons would be unnecessary, and that all possible reasons for objections would be preserved for appeal (388, 1286, 1288, 4014, 5908, 8298).

The Court singled out counsel for appellant and criticized him for arguing that the prosecution had searched appellant's apartment but could find only one magazine article to put in evidence against him. The Court charged the jury to disregard the argument because there was a whole "pile of *26 stuff" from the apartment which the prosecution wanted in evidence but which the Court precluded as merely cumulative (9101). When counsel objected that the other literature had been excluded as irrelevant, the Court charged the jury that it had been mistaken and that "I ruled, apparently, not that it was cumulative, but that it was irrelevant because it had nothing to do with the issues in this case ..." (9144). The damage had been done, however, and the jury knew that there was a lot of other material in appellant's apartment that the prosecution at least believed had evidentiary value. The Court also did not tell the jury to recredit counsel's argument that one article in the apartment was not significant evidence of guilt. The Court's readiness to inform the jury of defense counsel wrongdoing, while overlooking that of the prosecution, is apparent in its further criticism by name of appellant Ayyad's counsel for arguing that Ayyad's statements had been improperly introduced in evidence (9088-89). The Court had promised to criticize the prosecution's argument that appellant had the burden to prove an innocent source for the acid on his shoe, but it never did (8408, 8424).

The Court instructed the jury that only intent to damage property was necessary to sustain all the counts of the indictment, including those charging that deaths had occurred (9156-57).

Over objection that the prosecution had not adduced evidence against specific defendants of bombing objectives other than the World Trade Center and that therefore the Court should charge a requirement of specific knowledge and intent *27 with respect to that building, the Court noted that the indictment included any buildings and was "as broad as you can get" (8300). The Court opined that a defendant would be guilty even if he intended that the U.N. be bombed (8298-8301) and charged:

Count One charges the defendants with a conspiracy to bomb the World Trade Center and to destroy vehicles and other property ... damage and destroy and attempt to damage and destroy by means of fire and explosives buildings, vehicles, and other real and personal property used in interstate commerce ...

(9120-22);

... in discussing the objects of the conspiracy at one point I suggested in a shorthand way apparently that the objects of the conspiracy was to blow up the World Trade Center, but that's not accurate. The objects of the conspiracy are the four objects listed in the indictment ... to damage and destroy ... buildings, vehicles and other real and personal property used in interstate commerce ... In my shorthand way I misstated. Those are the objects as charged in the indictment. It is not restricted to a particular building.

(9144-45).

IV. The Compounding of Irrelevant Facts to Give the Appearance of a Case

The prosecution's case compounded innocuous facts to give the appearance of guilt. The introduction against appellant of a sales receipt evidencing his purchase two years prior to the World Trade Center explosion of a refrigerator found in an apartment unconnected to the crime is described in Section I, supra. Over objection, the receipt and the refrigerator were treated as if they had been introduced in evidence, despite the prosecution's failure to introduce them *28 and to adduce as promised additional evidence connecting the refrigerator to the alleged bomb factory at 40 Pamrapo (Section I, supra, at 9- 10). Also set forth in Section I are the details of the introduction of appellant's purchase of smokeless powder months before the explosion, and the fact that no guns were found in his apartment after the explosion. This evidence was introduced against him, over objection, despite the prosecution's concession that the powder he purchased was not found at the explosion site or at the Space Station storage locker after the explosion.

At the time of the purchase, appellant gave a plausible explanation for the purchase which was not negated by the absence of guns in his apartment three months later (Section I, supra, at 6).

The spectra of guilty association was furthered by the prosecution's introduction of the fact that appellant maintained a bank account in the same bank as Salameh. The evidence was introduced despite the fact that appellant's account was in a different branch of the bank in a different State and was "unrelated to this [Salameh's] accounts." The account was kept in a branch near the car service for which appellant above (2789-2826).

The prosecution introduced evidence that appellant visited El Sayed Nossair at the Attica "Institution" on February 7, 1993, a fact having no relevance to the case and prejudicing appellant by associating him with the well *29 publicized accused killer of Rabbi Meir Kahane. [FN6] Upon appellant's objection to the relevance of this visit, the prosecution argued that the purpose was to show that appellant used his credit card on that date to make a phone call from Attica. The latter fact, however, was not relevant nor material, because the evidence was not disputed that the credit card which was in appellant's name was not ordered canceled by him until the next day, February 8 (6556, 6545-51), and the Attica records, in any case, show that appellant's brother Mohammad, not appellant, was the one who visited on February 7 (6556-66).

FN6. Emphasis of that association was added by the admission, over objection of photos of defendants with Nossair (6098-6101, 6560).

Without evidence that it was seized from appellant's apartment (5583-5606), but introduced over objection as if it had been (7217-18), was a magazine with appellant's fingerprint on an article about demolition of buildings. The magazine was admitted according to the Court's theory regarding all the literature about guns and explosives uncovered in the case, notwithstanding absence of connection to the World Trade Center explosion,

Now, let me suggest to you that they [who do research on the Holocaust, for example] have one of these books and they build a gas chamber and they stick somebody in it and, you know, gas the person, can the book be admitted as evidence? The answer is, sure it can.

(7243). The magazine attributed to appellant's possession was dated, May, 1990, included other articles about fasting at Ramadan, Kashmir, and the civil war in Afghanistan. A copy of *30 the same magazine was found among Ajaj's belongings and was commercially available (7447-49, 7564-67, 8192-8212).

Moharam's testimony that appellant was interested in vans and that he was nervous and prayed on the night of, or two nights after, the explosion, did not logically advance the possibility of his intentional involvement in the explosion. There are just too many exculpatory reasons for such behavior, including the ones testified to by Moharam, that appellant had had an accident with the car, that he did not have a job that night, and that a devout Muslim could choose to pray at that time (5954, 5880-82, 5902).

The compounding of these irrelevant facts, even with the addition of facts like sulfur ions on the shoe and presence at Salameh's apartment on Virginia Avenue, does not retroactively, justify the admission of each one of them. They are not connected by other evidence to each other or to the ultimate questions of whether appellant knew of a plan to blow up the World Trade Center, and that he did some acts intending to further the plan, unless, as in the Court's example, the ultimate facts are presumed.

V. The Concealments and Misrepresentations of Facts About Government Informants and Preclusion of Cross-Examination Into the Motives and Biases of Government Witnesses

Wahed Moharam testified that he employed appellant as a limousine driver, that in the weeks prior to the explosion appellant asked several times to borrow Moharam's van, that on the night of the explosion, or the next night, appellant appeared nervous and prayed, and that appellant declined work the next day (See Section I, supra, at 12-13, transcript 5866-*31 5906). Moharam was also a paid informant for the FBI (Ibid; transcript 5890-99, 5906). According to a government document included in the 3500 material turned over to the defense (35155J), Moharam had been arrested in 1991 for "counterfeiting dealing with import and exported vehicles" and had made some sort of deal with the government to become an informant for pay. Appellant sought disclosure of the deal because it might affect Moharam's credibility. The prosecution refused, and the Court refused to order disclosure and precluded cross-examination on the subject, claiming that it knew the terms of the deal and that it had nothing to do with this case. Appellant also argued that the witness' claims of being in fear over his involvement in this case (5890-91) could be discounted by cross-examination (5844-63).

Although the Court told defense counsel that Maharam's role as an informant for the prosecution had nothing to do with this case (5863), the Court had just had an ex parte, in camera conference with the prosecution at which the prosecution informed the Court that Moharam's role was to provide evidence of the activities of a named co-conspirator in this case, Sheik Omar Abdel Rahman, the cleric who was a spiritual associate of appellant and who the prosecution charges was the instigator of the plan to blow-up the World Trade Center and who is presently on trial for that in the Southern District of New York. The same Court which told defense counsel that Moharam's deal had nothing to do with this case, wrote in another context in this case, "The criminal transaction tried in the case at bar forms a part of the *32 charges in Rahman. Furthermore, each of the four defendants in this case is alleged to be an unindicted co-conspirator in Rahman." United States v. Salameh, 856 F. Supp. 781, 784 (1994). In the ex parte conference [FN7], the prosecution misled the Court that the fact of Moharam's role as an informant in this case would be cumulative, "marginally relevant" and, "would serve to compromise him as a potential witness in a pending indictment against Mr. Rahman and in our view potentially expose him to a greater threat than he is already exposed to at this point" (5857, 5856-57). The prosecution claimed that part of the reason for asking ex part for concealment of Maharam's status was that Moharam "is very concerned concerning the nature of the informant activities" and didn't want defense counsel to know (5857). in a letter to defense counsel, however, dated January 2, 1994, and copied to the Judge, the prosecution revealed that Moharam was already relocated under Government protection. The Court agreed to the concealment.

FN7. The minutes of this conference were sealed during trial. They were unsealed in May, 1995 for the purpose of this appeal.

Carl Butler was the tenant at 40 Pamrapo who saw the man with the "weirdest" red hair "barking" orders in a foreign language in the driveway (3386-3432). Prior to his testimony the Court had another ex parte, in camera conference [FN8] with the prosecution at which he granted the prosecution's request to *33 conceal from the defense the facts that Butler had lied in court documents and on his Air Force enlistment papers to cover up his conviction and ten year prison sentence at Attica penitentiary during the years 1956-66 and that he had been AWOL and unfavorably discharged from the Air Force (3307-18). Although the Court informed defense counsel that it was precluding use of the prior conviction, it did not inform counsel of the prior perjuries and its order precluding disclosure.

FN8. The minutes were sealed during trial. They were unsealed in May, 1995, for the purpose of this appeal.

Ashraf Moneeb testified that appellant visited the back bedroom of Salameh and Yousef's Virginia Avenue apartment a few times, and the prosecution claimed that, despite the record to the contrary, Moneeb identified appellant as the man who Yousef said could help Salameh and Yousef find another apartment, which the prosecution claimed was the bomb factory (2839-61). The Court precluded cross-examination of Moneeb on the circumstances of his questioning by the FBI, specifically on Moneeb's being handcuffed and held at gunpoint by the FBI, his fear during questioning at FBI headquarters, and FBI threats to deport him if he didn't answer their questions (2883-95). He was expecting the grant of American citizenship in March, 1993, when the FBI first visited him to ask about this case, but as of the date of his trial testimony in November, he had not received it. The FBI took his green card when they questioned him and told him that they would not return it until after he testified (2882, 2892-97). Appellant argued that the proposed cross-examination about the specific methods of intimidation employed by the FBI and about Moneeb's *34 fears were relevant to Moneeb's credibility, bias, motivation and state of mind to testify against appellant (2902). While precluding the cross, the Court allowed the prosecution the self-serving leading redirect that Moneeb was not "pressured to make things up." (2890, 2895).

VI. In-Court Suggestion that the Witness Moosh Identify Appellant Instead of a Juror

A gas station attendant, Willie Mosh, testified that at 3 or 4 A.M. on the morning of the explosion, he put gas in a yellow Ryder van and a navy blue car which accompanied it. The driver of the car paid for the gas for both (3993). Moosh was asked on direct examination to look around the courtroom and to identify the driver of the car. He identified juror number 6, notwithstanding that two counsel for appellant drew attention to appellant by both objecting to the procedure of having Moosh walk around the courtroom (4006-08). Asked to identify the driver of the yellow van, Moosh picked out juror number 5 (4010). These jurors did not look like the defendants (4012-19, 5229-30).

Over objection to the impeachment of their own witness who had actually made in-court identifications, the prosecution was permitted to elicit Moosh's testimony that prior to trial he picked out different people, appellant's photograph as the driver of the car and Salameh's photograph as the driver of the van from different photospreads containing six photos each (4012-22).

Trial counsel had made no pre-trial motion to suppress Moosh's identifications, and he made none even when *35 Moosh identified the jurors and gave other testimony indicating that his pre-trial identifications had been suggested. [FN9] Moosh testified that a week after the van and the car left his station, he saw a newspaper with a photograph and told "the baker" that that was the driver of the van. He had also seen photographs on TV and reports in the newspapers and on TV about the yellow Ryder van (4019, 4989-90). The FBI then visited the station and told Moosh they understood that the gas for the van carrying the bomb had been pumped at the station (5016). Moosh took the agent home so Mrs. Moosh could assist in the interpretation. Moosh testified, "my wife told me that he wanted to know if a yellow van had gone there to get gas and a blue car" (4040). Realizing in court that he probably wasn't supposed to identify jurors, Moosh explained, "Since like ten months has gone by ... the people have been lost on me. And the FBI hasn't shown me so many pictures like that" (4984). Indeed, according to Moosh he identified Salameh's picture, Ramzi Yousef's picture and the picture of a third man who was a passenger in the blue car, all in the same photospread, GE-730 (4020-22, 5026-27). Many Arabs with beards come to his gas station (4979-81, 4992), and he might have been confused because the jurors could also be customers in his gas station *36 (5043-44). At trial Moosh described the driver of the car as a white person with orange hair, freckles, and beard (4006). Prior to trial when first interviewed by the FBI, he told them that the driver of the car had dark hair (4057, 4062). Moosh claimed he had spent two hours with the lead prosecutor during the day prior to his testimony, but the prosecutor had been in court all day that day (4033-34).

FN9. This failure of trial counsel is the subject of a separate motion for remand and new trial filed in this Court. On April 1, 1993, Jesse Berman,

Esq., counsel who had preceded trial counsel, but was relieved on May 4, asked the Court for a hearing into the manner of the presentation of the photospreads and for the arrangement of corporeal lineups. These requests were ignored (See transcript proceedings April 1, 1993).

Moosh had been paid $45,000 by the FBI by the time of the trial (4049-53). He used to make $3,000 a year at the gas station before the FBI started paying him (4047-48). He was not working at the gas station anymore, because the FBI didn't want to chance his getting hurt on the job (5012). The payments might not continue after the trial, because

If everything ends, my work ends, the work that I'm doing now. I end up without having a job because of defending, sort of, the country here. Because when I became a legal alien, a resident alien, I took an oath to defend this country ... That's what I'm doing. I am defending this country. I am defending this nation

(5010). Moosh testified that the money from the FBI was to enable him to move to a different residence, but then he admitted that he still lived in the same place as he did before his association with the FBI (5002, 5038). After an overnight break and having seen in court their photographs with his initials on the backs, over objection Moosh was permitted on government redirect to identify Salameh and appellant in court as the driver of the van and the blue car, respectively (5034-35). A red car joined them and the three cars left the station together (4008-11).

*37 VII. The Prosecution's In-Court and Out-of-Court Coaching of the Witness Igiri to Identify Salameh in the Ryder Van, and the Court's Minimization of Igiri's Lie

A worker at the Space Station Storage Locker, Blessing Igiri, identified Salameh as the man named Kamal Ibrahim who rented locker numbered 4344 at the storage facility (3886-89). On February 25, a truck arrived at the facility to make a delivery of cylinders to the locker. The Assistant Manager went out to the street to stop the truck from entering the facility, and Igiri watched through the office window. The prosecution attempted to have Igiri testify that he later saw Salameh exit the facility in a yellow Ryder van followed by a sedan, but Igiri refused, despite repeated coercive questioning.

Q: And then What happened sir?

A: Sir, I can't recall what happened because as I told you I was busy with a lot of things in the computer.

Q: So you don't recall seeing anything else?

A: I don't recall

Q: Okay. Now sir, did there come a time when you saw another vehicle approach the gate? ... Did you see another truck or car come up to the gate?

A: No.

Court: in connection with this?

A: No.

Q: Now, sir. Did you again at any point in time see Mr. - this gentlemen right here, on that day after you saw the, after you saw the cylinders, did you see this?

A: No.

Q: Did you see the gentleman he was with anymore that day?

A: No

Q: ... when Dave came in do you have any idea where the gentleman who came in if the van was .... Objection

Court: No.

A: I saw him, I saw the gentleman that came with him outside with Dave. They were standing outside.

Q: Did you see - you said that you didn't see *38 either of them after that?

A: No.

Q: Did you see how either of them left?

(3896-98). When objection was taken to this last question, the Court sua sponte adjourned for lunch and refused a defense request that the witness be ordered not to talk to the prosecutor over the break.

After the lunch break, Igiri returned to the stand, and his direct examination continued as follows:

Q: Now after that time that you saw the truck leave, did you see this man who you identified as Kamal Abraham and the man that was with him any more on that same afternoon?

A: Yes.

Q: When was that, sir?

(3900-01). The witness then testified that he saw Salameh and another man, presumably Yousef, drive out of the facility in a yellow Ryder van (3901). On cross-examination, the following colloquy took place:

Q: Did you talk to this gentleman [the prosecutor] over lunch time?

A: No.

Q: You didn't discuss this case at all?

A No.

Q: ... From the time you left the stand this morning, okay, until now or until you came back on the sand, did you speak to Mr. Childers?

A: Did I speak to Mr. Childers?

Q: Yes.

A: No.

(3901-02). At a side bar requested by the defense, the Court told the prosecutor that if he hadn't spoken to the witness he "ought to have [his] head examined" (3903). The prosecutor then admitted discussing it with him. The witness was then addressed by the Court in open Court.

*39 Court: ... Did you talk to Mr. Childers, the fellow right here, have a little chat with him about what he was going to ask you when you came back?

A: No.

Court: You didn't see him at all?

A: I saw him pass through the hallway.

Court: But he didn't stop you and say, hey, look, Blessing, I have got to ask you some more questions.

A: No.

Court: Are you sure?

A: No.

(3904). Defense counsel then started to make a request. The Court cut him off and asked the prosecutor in open court, "Mr. Childers did you talk to him?" The prosecutor replied, "Yes, your Honor. We did have some words." The defense resumed cross-examination, and the Court then interrupted and addressed the witness in open court:

You have to understand, Mr. Igiri, lawyers 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?

(3905). The witness replied, "okay", and the cross examination continued Defense counsel asked, "Did he tell you what he was going to ask you?" and the witness said, "yes." The Court then interjected, "Not the exact words, but did he tell you basically what he was going to ask you; yes?" The witness replied. "Yes, he talked to me." (3906). Upon further questioning by defense counsel, the witness claimed the prosecutor never asked him at any time about a Ryder truck (3906).

VIII. The Parade of Victims and Autopsy Photographs, Hate Literature About Killing Jews and Christians and Other Prejudicial Evidence

The trial opened with the testimonies of more than 20 *40 witnesses over the first five days detailing the pain and suffering of the victims of the explosion to no apparent purpose but the emotional blinding of the jury (165- 660). Witnesses described experiences irrelevant to the case, but so painful that the jurors were reduced to tears (593, 627). A front windshield collapsed in on the driver of car leaving the parking garage (174-75). An elevator operator detailed his walk down a hundred floors in the smoke, and on the stand became distraught when describing his relationship to his fellow employee who was killed (183, 207-08). Fire fighters and policemen described taking people out of stalled elevators and down the stairs (195-96, 209-28). Others described being trapped in elevators (228-27). A parking garage attendant broke down on the stand when describing how his booth fell on him (344-65). An employee was permitted to describe in detail the office of the pregnant woman who was killed (381-452). A maintenance man testified to being blinded (452-71). Fellow employees described their meetings and plans before and after the explosion with a man who was killed in it (496-50). Emergency technicians unearthed dead victims days after the explosion (504-17). Injuries were described in detail (600-620).

Despite the stipulation that people were killed and injured, and over numerous and various objections (471-72, 544) approximately ten color photographs of dead people and parts of dead people were introduced in evidence and passed among the jurors, including a photograph of the dead pregnant woman (544), photos and testimonial descriptions of the dead laid out *41 in the makeshift morgue in the Tall Ships Bar of the vista Hotel (562-66), photographs of the remains of the victim whose body was recovered from the rubble, the body of a victim who died at St. Vincent's Hospital (566-72), and a photograph of a head with a hole in it (627). The Medical Examiner was then permitted to review all the death and injury and to refer to the photos again with detailed descriptions and opinions about causes of death about which there was no dispute (629-55). All objections and motions to preclude and to declare a mistrial were overruled and denied. The Court ruled that this sort of evidence always comes in in "murder" cases (262-64, 365, 471-72, 501, 544, 620-27).

Over objection and motions for preclusion, severance, limiting instructions and mistrial (7074-75, 7320-21, 7340-44, 7226-27, 7231-43, 7247-51, 7286) the Court admitted against all the defendants various documents and literature seized from co-appellant Ajaj's luggage when he was arrested upon entering the country six months prior to the explosion. The Court recognized a problem with unsigned handwritten materials, but ignored it (7340-44), and the Court admitted both handwritten and printed materials without authorship or adoption by the defendants. Anything about guns, poisons, or explosives, even though not of the type alleged to have been used in the WTC explosion (7226-27, 7271, 7377-78) was admitted, as according to the Court, books about gas chambers would be admitted against Nazis who used them (7243, 7231-43). The documents and literature were translated into English and read to the jury. The jury thus heard and was led to hold against appellant the *42 fanatical religious and racist phrases of warfare associated with Muslims espousing fighting against Zionism with Uzis and M-16s (7349), terrorism as a religious duty for those facing the enemies of God (7249), Jihad as a war against Jews who kill Muslims (7355), revolt and liberate Palestine, with hand grenades, sabotage and blockades (7355, 7391-98). struggle against the terrorism of the Mossad [the Israeli intelligence service] and the enemy Zionism (7413), "In the name of Allah" using explosives (7431-32), advocating Jihad by combat and pistols (7455) manufacturing explosives "In the name of God" (7436), gaining explosives knowledge in the struggle against Zionists (7443), Palestinian brothers fighting against the enemy Zionism (7445), using money and forged documents and advocacy by the World Assembly of Muslim Youth (7451-53), the necessity for a military organization against the hostile powers, the Christians, Zionists and the United States who conspire against Islam (7455), shock troops and self-sacrifice for Jihad (7459), Masons as secret Jewish terrorists (7465), pistols, bullets, shooting associated with an encyclopedic listing of Muslim sects (7463-64), terrorism as a religious duty of Muslims (7470), and America is against the Muslim, Jewish arrogance conspires against Jihad (7477-78). A videotape found in Ajaj's luggage contained voice overs advocating holy war against Jews, Christians and Americans (7480-84). A second such videotape was played for the jury and it showed what the prosecution purported to be the explosive destruction of the American Embassy. In fact the scene was from "Death Before Dishonor" a commercially available feature *43 film made in America and available in any video store, and the embassy being destroyed is that of a fictional country called "Jemel" (7485-7513, 8216). The prosecution was also permitted to introduce a blow-up of one frame from the video purporting to show an American flag over the fictional embassy (7506).

Other purely prejudicial evidence with no evidentiary foundation or relevance to the issues included Willie Moosh's testimony that the yellow van and accompanying limousine hesitated before leaving his gas station because a police car was passing (4008-10); the testimony of FBI agent Traficante that she seized a photograph of appellant from co-appellant Ayyad's house because prior to the search, "we were told that anybody dealing or related or in connection with the bombing, they tend to hold any photographs ... they tend to keep any photographs or any other evidence of the bombing at their home" (6011- 12); and the introduction of Salameh's immigration documents, long predating the conspiracy, merely to prejudice the jury against Salameh because he made inconsistent statements on the documents (2710-11, 2739-43, 2759-62, 2756-80). To create the impression that Ramzi Yousef had fled the country on the day of the explosion under an assumed name, the prosecution introduced, over objection, the February 26 airplane ticket and passport photo of someone named Abdul Basit, whom no one in the courtroom, including the Judge, could say looked like Ramzi Yousef (5497-5504, 5509-11).

The prosecution was permitted to introduce a videotape of an exploding van ostensibly for demonstration purposes, but there was no foundation laid that the same *44 chemicals in the same quantities alleged to have been housed in the van at the World Trade Center were used in the demo van: the detonator chemical was concededly of a different type than the one allegedly used at the World Trade Center; and there was no attempt in the demonstration to even approximate the structure and environment of the area around the explosion at the World Trade Center. The Court replied to these objections, "Yes, but I will let it in." (7944-48, 7976).

A Secret Service agent testified that he was walking in the parking garage of the World Trade Center at the time of the explosion and that just before the blast he saw a yellow van parked where the prosecution's expert would later deduce a yellow van containing the explosives was parked. The Secret Service agent was debriefed by the FBI on the day after the explosion and provided many details of what he saw, but said nothing about a yellow van (269-298). The Court ruled that the prosecution could not introduce as a prior consistent statement the fact that the agent did mention the yellow van to another Secret Service agent two days after the explosion (303-306), but when the other agent testified, the Court allowed that testimony (323-329). The second agent, who was with the first one at the time of the blast, observed many yellow vans in that garage (340).

IX. Jury Selection: Islamic Bias Voir Dire Denied Despite Prosecution Attribution to Defendants of Literature Advocating Religious Wars in the Name of Islam

The Court denied defense requests for inquiry of the prospective jurors to elicit racial and religious biases regarding Islam, Islamic fundamentalism, and the effects of *45 media depiction of Muslims. The Court agreed to ask only whether the jurors had traveled to the Mid-East, whether they had any Muslim fiends, and whether they believed Muslims should be treated differently. The Court's rationale for denying a searching inquiry into what the jurors understood and believed about Islam and Muslims was that "religion is not on trial" (386). The defense protested that the prosecution would put religion on trial, in effect, when it introduced all the literature seized from Ajaj's luggage exhorting Muslims in the name of Allah to engage in war against Jews, Christians, and the United States (See Section VIII, supra). The Court repeatedly denied the requests for bias voir dire in general and voir dire of particular jurors, and also denied challenges for cause to a juror who believed the defendants were guilty but said she could be fair (346-48, 362), and to a woman whose Jewish boyfriend might be disturbed at anti-semitic writings (1170- 71), and to a priest (1232-35), (346-68, 1170-1290).

X. The Denial of Severance: The Precht Summation Arguing Ramzi Yousef's Plan to Bomb

Appellant had moved for severance prior to trial. The motion was reiterated, along with a motion for mistrial, when the hate literature and video tapes seized from co-defendant Ajaj were entered into evidence by the prosecution and by Ajaj himself (Section VIII, supra). A motion for a mistrial was again necessitated when Robert Precht, attorney for co-defendant Salameh, argued that the fugitive Ramzi Yousef had indeed planned the bombing of the World Trade Center, that he had entered the country with such a plan, and that Salameh *46 had participated in the bombing, albeit unknowingly. This argument effectively convicted appellant against whom there was substantial evidence of association with Yousef, but, except for Precht's summation, no evidence that he or Yousef knew about a plan to bomb the World Trade Center or other buildings (8630-32, 8669, 8532, 8530-8626). The trial Court wrote in another context, "each of these defendants presented conflicting defenses at trial" (United States v. Salameh, 856 F.Supp. 781 (1994). At oral argument in this Court on appellant's petition for a mandamus to allow counsel of choice to represent him at sentencing, the prosecution represented that conflicting defenses were presented throughout the six months of trial. (See tape recording of oral argument, May 3, 1994, In Re Abouhalima, 94-3038).

XI. Jury Deliberations: Court Excision of Relevant Defense Testimony from Read-Backs Requested by the Jury

During deliberations, the jury asked for read-backs of the testimonies of the witnesses who observed tenants and visitors at 40 Pamrapo, the building where the prosecution claimed the explosive chemicals were mixed (9228). The superintendent had testified that Salameh and Yousef were the tenants and that "a big guy" who drove a black Lincoln visited (3335-79). Although appellant was not identified by the super, a further described, the prosecution argued that appellant was the big guy. The jury heard that testimony read back, but the Court refused to allow the jury to hear again the super's testimony that he never saw the big guy inside the apartment, that another tenant drove a big Lincoln Continental (3383-*47 3384), that he did not see Salameh move out, (3385) he only received the keys from Salameh on the last day (3385-86) and that he, the witness, was interviewed repeatedly by the FBI and the news media (3374-75) (9235).

A tenant at 40 Pamrapo testified that a man with the "weirdest" red hair, who dressed like a chauffeur, visited the building several times a week and once "barked" at the tenant who wore a lumberjack shirt (3386-3432). The jury heard the testimony again, but the court refused to let them hear again that the man with the weird red hair was not in the courtroom (3891-92), that only the man in the lumberjack shirt lived in the apartment in question (3388), and that the witness saw lots of other cars at the building and couldn't describe the drivers (3419-3424) (9235-36).

The jury also asked to hear again the testimony of the roommate of Salameh and Yousef at the Virginia Avenue apartment about the visitors to that apartment (9228). The jury thus heard again that appellant visited Salameh and Yousef there, in the bedroom with the door closed (2839-97), but the Court precluded them from hearing again that the witness lived and studied in the living room, therefore the closing of the bedroom door by Salameh's visitors was courteous to him (2888), that the witness was nervous during his testimony and when the FBI interviewed him in hand cuffs and with a gun to his head, that the FBI took his green card and refused to return it until after his testimony, that his citizenship has been delayed since the FBI started questioning him about the case, and that his description of appellant as red-haired did not appear in *48 FBI reports (2882-88, 2890, 2894-95, 2896-97). The Court did allow the jury to hear again that the FBI did not pressure the witness to make anything up (2895) (9236).

XII. The Sentence: Denial of Counsel of Choice and Effective Assistance of Appointed Counsel; Illegal Sentence and Appearance of Bias the Court

On March 4, 1994, the defendants were found guilty on all counts. Shortly thereafter they discharged their lawyers and retained the firm of Kunstler and Kuby to represent them. Kunstler and Kuby filed a notice of appearance on April 12. At proceedings on April 15, outside the presence of appellants and without permitting counsel to speak, the Court disqualified Kunstler and Kuby (See transcripts of proceedings those dates and the Court's order entered June 14, 1994). The defendants petitioned for a writ of mandamus from this Court directing that Kunstler and Kuby be permitted to represent them. At oral argument on the petition on May 3, 1994, this Court questioned whether the District Court had been in error in disqualifying appellants' lawyers of choice without a hearing, but upon representation by the prosecution that it would return to the District Court and request the hearing, mandamus was denied. In Re Abouhalima, No. 94-3038, decided May 3, 1994.

The trial Court set sentencing for May 24, and began to contact Criminal Justice Act panel members to act as stand-by counsel for the defendants. When the undersigned was contacted by the Court's chambers, he indicated a willingness to aid the Court if he could and if the defendant would accept him as counsel. To that end he attempted to contact defendant by telephone at the federal penitentiary at Lewisburg, *49 Pennsylvania where all the defendants were sent after the verdict. On May 10, a telephone conference was finally arranged and appellant agreed to the undersigned's representation as long as he would be given additional time by the Court to learn the case and to adequately prepare for a motion for new trial and sentence (See letter of May 16, 1994, from Lawrence Mark Stern to the Court).

Counsel telephoned chambers on May 11, and informed the Court that with appellant's consent, counsel could now accept the assignment. He was officially appointed as of May 10, the date of the CJA appointment voucher, and filed a Notice of Appearance on May 20. He asked in what form the Court wanted a request for an adjournment to enable counsel to obtain the transcript, which had been provided to private trial counsel under CJA but which private counsel refused to turn over to new counsel, to interview the defendant, and to learn the facts and make the requisite legal analyses for both sentencing and a possible motion for a new trial based on trial counsel's ineffectiveness. New counsel was told that there would be no adjournment. New counsel then wrote the Court on May 16 that without an adjournment, he could not effectively represent appellant. Counsel wrote that appellant needed an Arabic translation of the Presentence Report. Counsel estimated that several months, to September, 1994, would be necessary to obtain the record, to conduct any investigation on a new trial motion, and to get ready for sentence. Counsel invited the Court to appoint other counsel if no adjournment would be granted (Ibid).

*50 At the sentence proceedings la??held on May 24, the Court acknowledged receipt of counsel's May 16 letter, and a follow-up letter of May 20, and ag?? denied an adjournment of any length because an adjournment to September "is not the way the system works" (Transcript, May 24, 1994 at 9-10, 15-16). A request for adjournment on the same grounds by new counsel for Nidal Ayyad, who also had been appointed on May 11, was denied (Id at 6-8). New counsel for appellant Salameh had never been authorized to represent him at sentencing (Id at 3-5). New counsel for appellant Ajaj, had been appointed on April 26, had no difficulty obtaining the record from CJA trial counsel, and was representing a defendant against whom the only evidence was his arrest with bomb-making literature six months before the explosion and his continuous incarceration until after the explosion. She also asked for time, which was denied (Id at 12- 13).

Prior to sentencing, new counsel wrote to the Court that he had visited appellant and conveyed to appellant the Court's intention to deny an adjournment and that appellant would therefore represent himself (Stern letter of May 20, 1994). Counsel reiterated in the letter that appellant claimed substantial grounds for a new trial motion which required time for investigation and briefing. Counsel also set out several Constitutional, statutory, and Guideline arguments for a reduced, sentence for appellant, and he stated appellant's joinder in any points raised by his co-defendants. Among the points thus raised were that the Court should reconsider its disqualification of Kunstler and Kuby or hold a *51 hearing, that the murder Guideline was inapplicable because appellant had not been convicted of murder and there was no evidence of such acts or intentions, that the limited evidence against appellant of mere association and other factors should move the Court to downwardly depart, that consecutive sentencing under 18 U.S.C. § 924(c) and the other statutes would amount to double punishment violative of double jeopardy and due process, that a term amounting to life would require a jury recommendation under 18 U.S.C. § 34 and §§ 844(d), (f), and (e), and that appellant's travel to Saudi Arabia did not justify an additional two points for obstruction of justice (Stern letter May 20).

An additional point he raised by joinder with a point raised by defendant Ajaj was that minimal participation should have required a reduced offense level (Ajaj Sentence Memo at 13). Had appellant had time to prepare he should as well have attacked the conditional imposition of 250 million dollars in restitution and the fine of $250,000 which he has no means to pay.

At sentencing the Court acknowledged receipt of the letter containing appellant's points, and denied them (Transcript, May 24, at 9-10-, 15-16, 52). The Court also stated that the Presentence Report played no part in his decisions in regard to sentencing and that he relied solely on his own memory of the trial. Counsel reminded the court that he had not been at the trial, had been refused the transcript, and had not been granted time to get a copy and to read it (Id at 9-10, 51-52).

*52 Appellant again requested a translation of the Presentence Report, and in response to the Court's claim that, despite the use of interpreters throughout the trial appellant knew enough English to understand the Report, appellant explained that there were limits to his understanding and many legal terms and other phrases were unfamiliar to him (Id at 11, 14-15). The other defendants also requested translations (Id at 12-13).

The Court concluded from its erroneous memory of the record that there was evidence that the defendants had planned to topple the North Tower of the World Trade Center into the South Tower and that they used sodium cyanide in the bomb to ensure the deaths of everyone in the towers, but that the cyanide burned off instead of vaporizing and caused permanent scarring of lungs instead of death (Id at 36-37). The Court called defendant Ayyad a "cowardly hypocrite" (Id at 50), defendant Salameh a "sneak and coward" who has a sense of achievement in the bombing and who has violated the laws of God (Id at 39), defendant Ajaj the lowest of the low (Id at 115), and appellant Abouhalima "a sneak and a coward." (Id at 65).

The Presentence Report informed the Court that appellant's wife was on public assistance and that because the government refused to uncuff appellant so that he could sign financial disclosure forms, additional financial information was unavailable (p.35). The Report also informed the Court that restitution was impossible, and "well beyond the means of the defendants." (p.39).

The Court imposed sentences on each defendant of 240 *53 years total imprisonment, fines of $250,000 each, assessments of $500 each, and restitution of $250,000,000 each should they write a book and sell it (Id at 39-41). The term of years was arrived at by expressed disregard for the Guidelines and a reference to the statutory "term of years" as permitting the compounding of the life expectancies of the six people killed in the explosion, 180 years, and adding two consecutive terms of 30 years each under 18 U.S.G. § 924(c) (Id at 39-40).

SUMMARY OF ARGUMENT

There was no direct or circumstantial evidence that appellant participated in, planned, intended, or had knowledge of a plot to blow up the World Trade Center or any other buildings, and no evidence that he embraced an agreement with anyone else which included such objectives. The wholly circumstantial evidence against appellant amounted at best to proof of association, and much of it was irrelevant and prejudicial, violative of due process, rights to counsel and against self-incrimination, and the rules of evidence.

Appellant was also denied a fair trial, an impartial Court, and due process of law, and the rules of evidence were violated, when the prosecutor misrepresented the evidence in opening and summation and the Court precluded read-backs of relevant testimony requested by the jury, when the prosecutor challenged the jury to find guilt in "the single most destructive act of terorism in the United States", and in effect testified in summation that a witness' testimony was other than is reflected in the transcript, and when the prosecutor argued in summation that he had proved guilt because appellant had failed to adduce evidence of the *54 exculpatory inferences which could be drawn from the prosecutor's case.

Appellant was also denied a fair trial, due process, an impartial court, and the Constitutional rights to grand jury indictment and notice when the Court charged that circumstantial evidence is what everyone knows about a bully, that "piles of stuff" not in evidence were found in appellant's apartment therefore defense counsel wrongly argued that only one relevant piece of literature was found there, and that proof of guilt of conspiracy to bomb the World Trade Center did not require evidence of specific intent and knowledge.

Appellant was also denied a fair trial, due process, cross-examination, effective assistance of counsel, and an impartial court when the Judge made an ex parte agreement with the prosecutor to withhold exculpatory evidence and misrepresented that a government witness was not a paid informant on this case, when the prosecutor made the same misrepresentation to the jury, when the Court concealed from the defense another witness' perjuries about his criminal record, and when the court precluded cross-examination about the tactics of intimidation used against a third prosecution witness.

Appellant was further denied a fair trial and due process when a witness identified a juror as the man who paid for the gas for a Ryder van which allegedly was used hours later as the container for the bomb, but the prosecutor was allowed on redirect examination of the witness to elicit an identification of appellant instead of the juror after showing the witness a *55 suggestive photospread.

Appellant was further denied a fair trial, cross-examination, due process, and an impartial court when the Court interrupted cross-examination on the subject of a witness' lie that the witness had not changed his testimony after speaking to the prosecutor, and when the Court gave instructions in open court ignoring the lie and stating that "there is nothing wrong" and "it is required" to have such talks and supplying testimony that the prosecutor told the witness "not the exact words ... basically what he was going to ask you, yes?" The prosecutor was also improperly permitted to repeatedly ask the witness the same question despite the witness' denials of the answers he later gave after the break in the direct examination and the discussion with the prosecutor.

Despite stipulation to the death and injury which resulted from the World Trade Center explosion, and notwithstanding that intent to cause death was not an element of the offenses charged, and that hate literature was unsigned, unauthored, unauthenticated, unauthorized and not found in the possession of appellant, five days of detailed victim witness testimonies of the horrors they experienced after the explosion, gruesome autopsy photographs and concomitant medical examiner testimony, and hate literature against the religions and nationalities of the jurors were introduced and deprived appellant of a fair trial and due process of law.

In this sensational case involving allegations of violence committed by Muslim fundamentalists and given the history of media attention to such cases going back to the Iran *56 hostage crisis and notice to the Court during jury selection that hate literature would be introduced into evidence, the Court denied appellant an impartial jury and a fair trial by refusing a probing voir dire of the jury's bias against Muslims and how the jury would react to such literature.

The Court's refusal to grant a severance or to declare a mistrial due to the introduction against appellant of hate literature possessed by a co-defendant, and due to another co-defendant's summation conceding that an associate of appellant's planned the bombing of the World Trade Center, denied appellant a fair trial and due process of law.

Appellant was denied counsel of choice at sentencing, because the Court refused to hold the required Curcio hearing and there was no conflict of interest. Appellant was denied effective assistance of assigned counsel at sentencing because new counsel, who had not tried the case, was assigned only two weeks before sentencing, was refused the trial record which consisted of 10,000 pages and could not be read and analyzed anyway in the two weeks allotted, the Court refused a continuance, and appellant had substantial grounds to object to the Presentence Report and to move for arrest of judgement, dismissal and a new trial which new counsel did not have time to investigate and to present to the Court.

The sentence imposed was violative of statutes, guidelines, due process, and double jeopardy, because the Court did not make individual sentencing judgments among the four defendants; expressly ignored the Presentence Report which, in any case, contained factual errors which should have been *57 corrected; the Court relied on erroneous factual assumptions, expressed personal animus against the defendants, erroneously applied the murder guideline in a case where intent to kill was not an element; refused to consider a downward departure, mitigating factors, or a minimal role reduction; pyramided consecutive sentences for use of an explosive device, upwardly adjusted for obstruction of justice for flight to avoid arrest, and imposed fines and restitution on an indigent defendant without consideration of the factors set forth in 18 U.S.C. S 3664, notwithstanding the inability of defendant to make the restitution within the five year statutory period, the compensation by insurance, and the mere speculation that appellant might write a book.

ARGUMENT

POINT I

THE EVIDENCE AGAINST APPELLANT WAS IRRELEVANT, PREJUDICIAL, VIOLATIVE OF DUE PROCESS, RIGHTS TO COUNSEL AND AGAINST SELF-INCRIMINATION, AND THE RULES OF EVIDENCE, AND INSUFFICIENT AS A MATTER OF LAW

According to the prosecution's witnesses, appellant was not seen at the so-called "bomb factory" at 40 Pamrapo Street in Jersey City. He was not seen at the Space Station Storage Locker where chemicals were found. He was not seen at the World Trade Center. No witnesses testified that he was at these places or that he had inculpatory conversations on the telephone or elsewhere of any sort. There was no evidence that he had anything to do with the rental of the van which allegedly housed the bomb, or that he committed any other knowledgeable acts in furtherance of a bombing. There are no *58 inculpatory post-arrest statements. There are no documents by him, or in his handwriting, or endorsed by him concerning plots, bombings, or anti-American, anti-Jewish ideas or feelings. In sum, there is no direct or circumstantial evidence that appellant participated in, planned, intended, or had knowledge of a plot to blow up the World Trade Center or any other buildings and no evidence that he embraced an agreement with anyone else which included such objectives.

At most what the prosecution did establish, in addition to all these negatives, was that appellant knew others charged in the case, and that he was with them on certain occasions. It is undoubtedly this single fact which caused his arrest in the first place. The trial strategy of the prosecution thereafter was to introduce as much information about him as possible and to put it all before the jury in the context of the fear of terrorism which permeated the trial, and thereby to give a suspicious cast to a quantity of disconnected facts and the appearance of guilt. Under this Court's objective analysis, however, association and presence under suspicious circumstances do not establish conspiratorial guilt. United States v. Jones, 30 F.2d 276, 281- 282 (2d Cir., 1994); United States v. Gavira, 740 F.2d 174, 184 (2d Cir., 1984).

On this kind of evidence, however, in the context of the prosecution's misrepresentations of it in summation, a charge which likened appellants to "bullies", the Court's misrepresentation of the bias and motivations of a witness, the introduction of a parade of victims, autopsy photographs and *59 inflammatory literature which was not connected to appellant, the other instances of unfair trial briefed in the succeeding points, infra, and the pressure on the jury to reach a verdict against what the prosecution challenged them was "the single most destructive act of terrorism ever committed here in the United States" [FN10] (16), appellant was convicted and sentenced to prison for life without parole.

FN10. This statement by the prosecution casting a fear of terrorism over the entire trial should have moved the Court to grant a mistrial (38-42), instead the atmosphere was fostered throughout (see Points, infra), and the jury was paralyzed. United States v. Solivan, 937 F.2d 1146 (6th Cir., 1991).

Contrary to prosecution representations to the jury in openings and summation, appellant was not the red haired man outside the so-called "bomb factory" apartment giving "orders." The witness who saw the man with the "weirdest" red hair testified that that man was not in the courtroom during the trial (3386- 92). The witness also testified that he didn't understand the language the red haired man was using, but the Court allowed the witness to supply his ideas of the meaning of the conversation anyway.

Appellant was not the man who helped Salameh and Yousef rent the "bomb factory" apartment in Jersey City. The witness to that statement testified that appellant's brother, Mohammad, who is red haired, looks like appellant and drove a limousine, helped rent an apartment which was in Newark, not in Jersey City (2861, 5605-06, 5542, 8968).

Appellant did not mention Ramzi Yousef's nickname, *60 Rashed, spelled with an e, on the airplane ride back from Cairo; he mentioned the name Rashid, spelled with an i, and stuck to it even when the Detective tried to move him toward Rashed. The prosecution even acknowledged that the name Rashid is different than the name Rashed, that one of their witnesses, Ashraf Moneeb, a roommate of Salameh and Yousef, used the name Rashid (9043). Nor did appellant first mention Pamrapo Street in response to a question about the World Trade Center; the Detective brought up the name of the Street without mentioning World Trade Center, and appellant, who lived in that Arab community, corrected the pronunciation (5957-82). Denial of voluntariness hearing denied Fifth and Sixth Amendment rights 18 U.S.C. § 3501; Miranda v. Arizona, 384 U.S. 436 (1966); see also the Motion for Review or Remand.

Appellant did not make the telephone calls charged to his credit card, and there were no recordings and no witnesses to the conversations to which the prosecution attributed sinister content without evidence. The credit card was being used without appellant's authorization. Prosecution evidence established that the phone company was notified of the fraud weeks before the explosion and again on the day of the explosion when the phone company conceded appellant would have first received the bill (6545-57).

Appellant did not purchase a refrigerator for use to house explosives at the Pamrapo Street apartment. The refrigerator was found at a location unconnected to the "bomb factory"; the prosecution introduced no evidence that the refrigerator was ever at the Pamrapo Street apartment; the receipt for the refrigerator was not introduced in evidence, and, at best, it showed only that appellant had purchased the *61 refrigerator two years before the explosion.

A commercially available Arabic magazine about the Afghani resistance movement was found somewhere; the prosecution did not adduce that it came from appellant's house, but appellant's fingerprint was on an article about bombing buildings as part of the Afghani resistance, the only fingerprint of appellant's discovered among the hundreds of thousands of items and scores of places examined for prints in this case. This fingerprint and the discovery of microscopic sulfur ions on one of appellant's shoes, the only item to contain such traces among reams of clothing seized from his apartment and the chemical swabbing of his automobile, could have established at trial guilt beyond a reasonable doubt of participation in a plan to blow up the World Trade Center, and buildings like it, only if a presumption of guilt had preceded the analysis.

The prosecution will argue that on appeal it is entitled to all the inferences in its favor, that the shreds introduced below are sufficient on appeal to sustain a verdict on the whole cloth. However, even on appellate review, the prosecution is only entitled to those inferences with substantial evidentiary support and which legally, logically, and reasonably are capable of supporting a verdict of guilt beyond a reasonable doubt (United States v. Carson, 702 F.2d 351, 361 (2d Cir., 1983); United States v. Manton, 107 F.2d 834, 839 (2d Cir., 1938)), and "charges of conspiracy are not to be made out by piling inference upon inference, thus fashioning ... a dragnet to draw in all substantive crimes." Anderson v. United States, 417 U.S. 211, 224 (1974), citing *62 Direct Sales Co. v. United States, 319 U.S. 703, 711 (1943). The verdict will be sustained only if "the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." United States v. Jones, 30 F.3d 276, 281 (2d Cir., 1994), citing Jackson v. Virginia, 443 U.S. 307, 318 (1979).

Here, only by a "piling of inferences" individually "too thin" (United States v. Nusraty, 867 F.2d 759, 764 (2d Cir., 1989) can the first level of material fact with regard to each piece of evidence be achieved. For example, to reach the inference from the fingerprint on the magazine article and the sulfur ions on the shoe that appellant helped in mixing chemicals for the bomb, intervening inferences would have to be made that he read the article, that he did so for a purpose unrelated to the other articles in the magazine which were about warfare in a foreign country and had nothing to do with bombing the World Trade Center, that the sulfur ions on the shoe came from sulfuric acid and not magnesium sulfate or Epsom salts or other chemicals commonly containing sulfur, that the sulfuric acid was from chemicals used to mix the bomb and not from some other innocuous source, that the ions were deposited on the shoe in the bomb factory or from direct contact with the chemicals rather than from contact with others who may have transferred the traces to him, that the chemical was deposited during mixing and not just by virtue of proximity to splashing, and that at the time the sulfur ions get on the shoe appellant knew and participated in a plan to use the chemicals to blow up the World Trade Center, or at least buildings like it. (See Point III, infra).

To reach the inference that appellant made or *63 received telephone calls related to the bombing of the World Trade Center, the pile of inferences about the content of the calls charged to his credit card must be piled on the inference that he was a party to the calls and that he knew the aim of the conversations, despite the total absence of evidence of the substance of the calls and the affirmative evidence that he reported the calls as unauthorized. Even in a case where the words of telephone conversations have been proved, this Court has held in reversing a conviction for insufficiency, "we are [not] permitted to read evil meaning into words usually having an innocent connotation, absent proof (of which there is none here) that they were part of a secret code." United States v. Terry, 702 F.2d 299, 321 (2d Cir., 1983). Here there were only phone records listing calls, no words at all, and the assessment of the viability of the inference of the ultimate fact must include the negating evidence that on February 8, 1993, even before most of the calls were made, appellant notified the phone company that his card was being fraudulently used. United States v. Cassamento, 887 F.2d 1141, 1156 (2d Cir., 1989); United States v. Johnson, 513 F.2d 819, 821-23 (2d Cir., 1975).

To infer beyond a reasonable doubt that appellant paid for the gas for the van knowing that it housed the bomb to be used to blow up the World Trade Center, a pyramid of inferences must be constructed. First, it must be inferred that it was appellant. The gas station attendant also picked a juror. A conviction cannot be based on an inconclusive identification. *64United States v. Fredericks, 857 F.2d 733 (11th Cir., 1988). Then, without evidence, it must be inferred that the van contained the bomb when it pulled into the gas station [FN11], that appellant knew that it did, that his purpose in accompanying it was to blow up the World Trade Center, or at least a building like the World Trade Center, (see Point, III(C), infra). "What is missing is any evidence that [appellant] knew that a [bomb] was couched behind the doors of the Ryder truck. That knowledge is an essential element of the conspiracy charged, without it the conviction must fail." United States v. Wexler, 838 F.2d 88, 91 (3rd Cir., 1988). It must also be inferred that appellant knew that he was paying for the gas for the van. The gas station attendant, Moosh, testified that he had had no conversation with the driver of the car about paying for the gas for the van. He merely approached the driver of the car for payment, and the driver gave him 21 dollars and told him to keep the change (4008-09). That amount was not inordinate for filling up the car alone. Although the driver of the van had referred Moosh to the driver of the car for payment, the referral was done at the van outside earshot of the car.

The prosecution conceded that the smokeless powder found in the Space Station Storage locker was not the same *65 powder appellant purchased two months earlier at a gun shop near his home, thus nothing could be inferred from appellant's purchase.

FN11. The infinite chain of inferences preceding any such conclusion would have to begin with the shard of metal with some numbers on it found a few days after the explosion. As described in the Statement of Facts, supra, that chain of inferences offered as evidence did not establish that the van rented by Salameh housed the bomb at the time of the explosion. No evidence was even offered about what was inside the van which pulled into the gas station eight hours prior to the explosion.

There could be no inference that appellant was present at the bomb factory, because the prosecution witness affirmatively discounted him. Also, the description of the man seen there fits appellant's brother. Furthermore, the red haired man was seen outside the apartment, not inside, and there was no evidence that he knew about or participated in what was going on inside. A neighbor and the super of the building noticed nothing suspicious about that apartment, not even the noxious fumes generally associated with the chemicals that were supposedly mixed there.

The prosecution emphasized in summation the testimony of Wahid Moharam, [FN12] the owner of the limousine service who said he observed appellant being nervous, praying, and then refusing to come to work in the days following the explosion. But Moharam testified that appellant said that he had a car accident. The prosecution's evidence supplied the innocent explanation, therefore they could not rely on the negation of their own proof to supply a contrary inference, particularly without other evidence. His leaving the country soon thereafter is also explained in the evidence (See Statement of *66 Facts, supra, section I) and post-crime activities alleged as consciousness of guilt are too ambiguous to supply gaps in the proof of the crime itself. United States v. Johnson, supra.

FN12. The prosecution, with the Court's assistance, concealed from the defense and the jury, Moharam's status as an FBI informer who was paid for information specifically against appellant as an associate of Sheik Abdel Rahman (See Point IV, infra).

Thus, this is a case where analyzing the evidence "not in isolation but in conjunction" (United States v. Geaney, 417 F.2d 1116, 1121 (2d Cir., 1969)) does not render it sufficient. Such an analysis depends in the first instance on a set of established material facts which possibly can be conjoined, if the logic of the inferences from those facts permits. In this case, there are none, or very few, established material facts because, as argued, a piling of inferences is necessary to conclude even the existence of each one of them, i.e., that there was sulfuric acid on the shoe, that the sulfuric acid came from chemicals used in the bomb, that appellant was the one who paid for the gas for the van, that he did so with knowledge that he was doing so, that the van housed the bomb at the time, that appellant knew it, that telephone calls charged to his number were made by him or to him, that the calls concerned subjects related to the bombing, and so on.

The prosecution cannot sustain its burden of proof by cross-referencing piles of tenuous inferences, offering one set to support another set in a bootstrapping of inferences, but this is how they constructed an argument to the jury, in addition to misrepresenting what they had proved. For example, they argued to the jury, as they will undoubtedly to this Court, that the set of inferences, without evidence, that appellant was identified at the bomb factory proves the set of *67 inferences that the sulfur ions on his shoe were in fact from sulfuric acid from the bomb factory and vice versa. In fact, neither set of inferences was grounded in evidence. The culmination of such cross-referencing permits a verdict of guilt only in the context of an unfair trial which fostered a predetermination of guilt.

Nothing is added to proof of appellant's guilt by the fact that he bought a refrigerator two years before the crime, and that that refrigerator found its way two years later into an apartment of a fellow Muslim unconnected to the case. Without evidence that appellant was responsible for supplying that refrigerator for use as the housing for explosives, his early purchase, which was not even actually established because the receipt was not introduced in evidence, was irrelevant or at best only further evidence of association. Yousef's fingerprints and traces of explosive chemical on it were thus purely prejudicial as to appellant.

The same can be said for appellant's visits to Salameh's Virginia Avenue apartment where the bedroom door was closed to give themselves and the roommate Moneeb privacy; for his recognition of the correct name of Pamrapo Street and the name, Rashid, the middle name of Moneeb; for the facts that he had a bank account in a different branch of the same national bank as Salameh, that he visited at Attica prison with El Sayid Nossair, the man accused of killing Rabbi Meir Kahane, that he bought gunpowder, that he didn't have guns in his apartment, that he was nervous after an accident and that he had asked to borrow a van in the weeks before the explosion. Over *68 objection, the prosecution was permitted to compound these irrelevant, prejudicial facts to give the appearance of suspicious weight to an otherwise non-existent case and to deny appellant a fair trial. F.R. Evid. 401, 403; United States v. Harvey, 991 F.2d 981 (2d Cir., 1993); United States v. Afjehei, 869 F.2d 670 (2d Cir., 1989).

Some of the pieces of evidence were also separately objectionable on grounds in addition to irrelevance: the incompetent testimony about "barking orders" by a witness, the tenant at 40 Pamrapo, who could not understand the language of the person speaking (F.R. Evid. 701, 602) [FN13], the opinion testimony of Moharam about appellant's state of mind (Ibid), and the non-conspirator hearsay statement of Yousef to Moneeb that Mohammad Abouhalima would help find an apartment. United States v. Lieberman, 637 F.2d 95 (2d Cir., 1980); United States v. Tarantino, 846 F.2d 1384 (D.C. Cir., 1988).

FN13. Evanston Bank v. Brinks. Inc., 853 F.2d 512 (7th Cir., 1988); United States v Whitworth, 856 F.2d 1268 (9th Cir., 1988)

An accumulation of weak inferences routinely lead the Courts to reject convictions on sufficiency grounds. For example, in United States v. Johnson, supra, this Court found that a defendant's presence in an automobile used to transport drugs, his close association with the driver who pled guilty to an importation charge and his false exculpatory statement after the a rest did not support a conspiracy conviction. The Court held that presence at a scene coupled with knowledge that a crime a being committed and evidence of consciousness of guilt *69 was insufficient to establish membership in a conspiracy. Here, the case against appellant is no better than the one presented in Johnson. Even accepting arguendo the material facts of appellant's presence at 40 Pamrapo and at the gas station, the evidence amounts to that of the defendant's presence in the drug transport vehicle. Moreover, the consciousness of guilt evidence in Johnson consisted of a false exculpatory statement offered by the defendant to extricate himself from the incriminating circumstances. In the instant case, the government does not even have proof that the exculpatory explanations of appellant's actions and statements after February 26 were false. Rather, they argue only from proof to the contrary to suggest his attempt to distance himself from co-defendants.

Also, in United States v. Gavira, 740 F.2d 174 (2d Cir., 1984), this Court overturned a conviction for conspiracy to distribute cocaine where a defendant, in a suspicious manner, lied about her presence in the apartment and her use of a rental car around the time that drug transactions occurred and a seven gram bag of cocaine was found on the rear passenger side floor of her car. In the instant case, appellant's arguable presence at various incriminating locations with co-defendants, his attempts to dissociate from them, and the implication that he touched a substance that may have been used by co-defendants to construct a bomb clearly does not exceed the quantum of proof in Gavira.

Other Circuits have also rejected convictions based on elaborate circumstantial cases premised on mere association *70 or presence padded by suspicious circumstances and innuendo. See e.g., United States v. Aponte-Suarez, 905 F.2d 483 (1st Cir., 1990) (knowledge of drug importation scheme, offering of use of farm for airstrip to land airplanes with illegal narcotics, and introduction of conspirator to third person who did furnish airstrip insufficient to establish participation in narcotics conspiracy); United States v. Coleman, 811 F.2d 804 (3d Cir., 1987) (longtime association with defendant on trial and knowledge of pending prosecution, renting of room where murdered witness found, agreement to testify as character witness for the defendant on trial, and inconsistent statements about purpose for renting room insufficient to establish co-conspiratorial liability in plot to kill witness); United States v. Sarro, 742 F.2d 1286 (11th Cir., 1984) (presence during sale of what was known to be stolen paintings between co-defendant and undercover agent in hotel room and conversations about interstate transportation of paintings, frisking agent and searching room, and accompanying agent into bathroom to examine paintings was insufficient to establish intent to join conspiracy to transport stolen paintings interstate); United States v. DiSimone, 660 F.2d 532 (5th Cir., 1981) (arrest with co-defendants at secluded airport in early morning hours near airplane loaded with marijuana and near rental car ditched on airport exit road, and seen in presence of co-defendants preceding afternoon insufficient to sustain conspiracy conviction); United States v. Villegas, 911 F.2d 623 (11th Cir., 1990) (defendant who was brother of co-conspirator and was present in vicinity of drug transactions, accompanied *71 brother to transaction in separate vehicle, looked back and forth during transaction to perform counter-- surveillance, stood by car with hood up and watched transaction from a short distance and provided false statement about engine trouble to explain open hood was insufficient to link defendant to drug conspiracy).

Even if the prosecution had established appellant's association, presence, and his knowledge that explosive chemicals were being mixed, stored, and transported, they still failed to adduce direct or circumstantial evidence that appellant entered into, or otherwise embraced, a conspiratorial agreement, let alone one to bomb the World Trade Center, or a building like it. It is not enough that appellant associated with others or that the evidence "places the defendant in a climate of activity that reeks of something foul." United States v. Sacerio, 952 F.2d 860 (5th Cir., 1992). It is not enough that appellant accompanied the van and paid for the gas; this single act does not evidence the embrace of a conspiracy to bomb the World Trade Center. United States v. DeNoia, 451 F.2d 979, 981 (2d Cir., 1971); United States v. Anderson, 981 F.2d 1560 (10th Cir., 1992) (making a delivery for conspirators is not a sufficient act of agreement).

Appellant was charged under 18 U.S.C. § 371 with a conspiracy requiring willfulness, the making of an agreement with the specific intent to commit the underlying crime. United States v. Marchese, 438 F.2d 452 (2d Cir., 1971). Thus, even if the evidence had supported the conclusion that appellant intended to bomb something, there was no evidence *72 that he and his co-defendants had agreed prior to the explosion to bomb any particular target or type of target, let alone the World Trade Center. See United States v. Davis, 965 F.2d 804 (10th Cir., 1992). Although the Judge erroneously charged the ??ry that knowledge of a plan to bomb the World Trade Center was not prerequisite to conviction (See Point III, infra), the jury nonetheless had to find from the evidence beyond a reasonable doubt that there was a meeting of minds on some specific target or type of target. The completed object must have been within the scope and reasonably foreseeable consequences of any agreement appellant had made.

A conspiracy conviction requires that one agreed to commit an unlawful act and intended to commit the underlying offense ... intent to commit the underlying offense requires that one had 'knowledge of the illegal objective contemplated by the conspiracy.

United States v. Salmon, 944 F.2d 1106, 1113 (3rd Cir., 1991). Here, the underlying offense as charged in all the substantive counts, and, as argued by the prosecution in opening and summation, the knowing object of the conspiracy for each of the defendants (19,8302, 8501) was the bombing of the World Trade Center. Because the evidence in the case did not provide a basis on which to found a conclusion of appellant's prior agreement on that object, or, on any target, appellant could have been convicted even though he believed that junked cars or an abandoned warehouse was to be bombed as training for the Afghanistan resistance, while one or more of his co-defendants had decided that a populated center city business office would finally be the target. These are intentions of far different kind, and in the absence of evidence of specific agreement *73 prior to the explosion, a meeting of minds cannot be inferred. United States v. Nusraty, 867 F.2d 759 (2d Cir., 1989) United States v. Terselich, 885 F.2d 1094 (3d Cir., 1989); United States v. Wexler, 838 F.2d 88 (3rd Cir., 1988); United States v. Salmon, 944 F.2d 1106 (3rd Cir., 1991). Appellant is thus not guilty of the conspiracy, and not guilty of all the substantive offenses which were not established by the evidence to be within the scope and reasonably foreseeable consequences of the agreement, if any, that appellant had made. Pinkerton v. United States, 328 U.S. 640 (1946).

POINT II

THE PROSECUTION'S MISREPRESENTATIONS IN OPENING AND SUMMATION, COMPOUNDED BY THE COURT'S DELETIONS OF RELEVANT TESTIMONY FROM READ-BACKS REQUESTED BY THE JURY, AND THE PROSECUTOR'S TESTIMONY AND VOUCHING, INFLAMING THE JURY WITH THE FEAR OF TERRORISM, AND SHIFTING THE BURDEN OF PROOF DEPRIVED APPELLANT OF A FAIR TRIAL

The prosecutor misrepresented the evidence in summation, and the Court deleted from the jury's requested read-backs the testimony which contradicted him. The combination of the prosecutor's summation and the Court's deletions resulted in the jury hearing the exculpatory testimony only once, months earlier when it had originally been given by the witnesses, but hearing the prosecution's misrepresented versions emphasized just prior to and during deliberations.

The prosecutor's misrepresentations in opening and summation repeatedly claiming evidence that did not exist, i.e., that appellant had been identified by the witnesses at 40 Pamrapo Street, the so-called bomb factory, and by the witness *74 Moneeb as the man Yousef said helped him find the Pamrapo apartment, that appellant carried buckets of chemicals out of Pamrapo, that he used Yousef's name when questioned on the airplane after being taken into custody in Egypt, that he used the name in response to an invitation to comment on the World Trade Center bombing, that he gave no explanation for his nervousness the night after the bombing, etc. (See Statement of Facts, supra, Sections I and II) are themselves, egregious enough to require reversal. United States v. Valentine, 820 F.2d 565 (2d Cir., 1987); United States v. Perholtz, 842 F.2d 343 (D.C. Cir., 1988); Guidroz v. Lynaugh, 852 F.2d 832 (5th Cir., 1988); Gradsky v. United States, 373 F.2d 706 (5th Cir., 1967). The same applies to the prosecutor's testimonial vouching that he knew that the witness Moneeb meant to say that appellant Mahmud, not his brother Mohammad, as the record reflected, had helped find the Pamrapo apartment. United States v. Dorr, 636 F.2d 117 (5th Cir., 1981); United States v. Diloretto, 888 F.2d 996 (3d Cir., 1989); United States v. Shaw, 829 F.2d 714 (9th Cir., 1987). "A prosecutor must scrupulously refrain from injecting his credibility into any part of the trial. See e.g. United States v. Clark, 613 F.2d 391, 405 (2d Cir., 1979), cert. den. 449 U.S. 820, 101 S.Ct. 78, (1980)." United States v. Damsky, 740 F.2d 134, 138 n.3 (2d Cir., 1984).

Here, in addition, the read-backs were conducted in a manner which fostered the prosecutor's misrepresentations and hence a distorted recollection for the jury. The Court precluded, inter alia (See Statement of Facts, Section XI) read-backs of the testimony that appellant was not the red *75 haired man at 40 Pamrapo, that that person was not observed going inside the Pamrapo apartment, and that the bedroom door of the Virginia Avenue apartment was closed for an innocent purpose when appellant visited. The preclusion of read-backs which clarify and which contradict prosecutorial misrepresentations must be a due process violation worse than precluding read-backs entirely, and the rationale for reversal in the latter case should hold for the former. United States v. Criollo, 962 F.2d 241 (2d Cir., 1992). Furthermore, this Court specifically holds that preclusion of read-backs is error when the prosecution has misrepresented the evidence in summation. United States v. Damsky, supra. The error was harmless in Damsky where the evidence was overwhelming. As argued in point I, supra, the wholly circumstantial case here was thin at best, and the prosecutor argued on the basis of the misrepresentation that appellant had been identified at 40 Pamrapo, "to put him there is to convict him" (8406). Nor is this a case where the court's preclusions were justified by ambiguity in the jury's request and by further clarification obtained by the Court. United States v. McElroy, 910 F.2d 1016 (2d Cir., 1990).

The prosecutor also sabotaged a fair trial by appealing to the jury's fears and prejudicing them with the threat, based on no evidence, that they were charged with deciding guilt for "the single most destructive act of terrorism ever committed *76 here in the United States" [FN14] (16). United States v. Johnson, 968 F.2d 768 (8th Cir., 1992); United States v. Solivan, 937 F.2d 1146 (6th Cir., 1991); United States v Beasley, 2 F.3d 1551 (11th Cir., 1993). A motion for mistrial was denied, and in summation the prosecutor reiterated, "Nearly a year ago the defendants launched a devastating terrorist attack on the World Trade Center. They left death, destruction, chaos, and horror in their wake." (8302).

FN14. Although the prosecution introduced literature seized from the luggage of co-appellant Ajaj when he tried to enter the United States six

months before the explosion, there was no evidence that appellant, or even Ajaj himself, adopted the ideas expressed (see Point VI, infra).

Finally, the prosecutor argued that appellant had not introduced evidence that he had been "underneath the hood of his car, anywhere near his battery let alone acid from within the battery", therefore the sulfur ions on his shoe must have come from sulfuric acid at the bomb factory and not a car battery (8408, 8424). This was an impermissible shifting of the burden of proof, particularly prejudicial because although the Court recognized the impropriety and promised a curative instruction in its final charge, it did nothing to correct it (8424). (See Statement of Facts, supra). Griffin v. California, 380 U.S. 609 (1965); United States ex. rel. Williams v. Lane, 645 F. Supp. 740 (N.D. Ill., 1986), aff'd 826 F.2d 654 (7th Cir., 1987); United States v. Sehnal, 930 F.2d 1420 (9th Cir., 1991). Nor had defense counsel invited the comment by suggesting in summation that there had been car battery evidence. Rather, he elicited testimony in cross-*77 examination of the prosecution's own chemist that sulfuric acid is present in car battery fluid. Counsel was merely eliciting inferences consistent with innocence available from the circumstantial evidence presented by the prosecution.

POINT III

THE COURT'S CHARGES THAT CIRCUMSTANTIAL EVIDENCE IS WHAT EVERYONE KNOWS ABOUT A BULLY, THAT DEFENSE COUNSEL'S ARGUMENTS WERE WRONG AND THAT "PILES OF STUFF" NOT IN EVIDENCE WERE FOUND IN APPELLANT'S APARTMENT, AND THAT CONSPIRACY TO BOMB THE WORLD TRADE CENTER DID NOT REQUIRE SPECIFIC INTENT AND KNOWLEDGE DEPRIVED APPELLANT OF THE CONSTITUTIONAL RIGHTS TO FAIR TRIAL AND DUE PROCESS OF LAW, AND TO GRAND JURY INDICTMENT AND FAIR NOTICE OF THE CHARGES AGAINST HIM

In this wholly circumstantial case, the Court in effect told the jury, over objection, that they could discount innocent inferences from the circumstances just as they would discount the innocent explanations of a presumably guilty bully who had committed an assault (9135-36, 9195, 9198). Circumstantial evidence was equated with community held presumptions of bad character and other crimes, what "every other kid in the neighborhood knew, ... it was him being a bully ... circumstantial evidence is quite sufficient." (Ibid). The court emphasized the conclusiveness of this "circumstantial evidence" by giving yet another example where the inference from a fact was indisputable, i.e. the inference of the presence of other people on an island from the fact of a footprint (9102-03).

The Court further prejudiced the jury's assessment of the evidence at trial by telling them that "piles of stuff" not in evidence had been found in appellant's apartment, that *78 the prosecution wanted all this in at the trial, and that appellant's counsel had wrongly argued that only one magazine article of relevance was found. The Court also emphasized wrongdoing by other defense counsel, but, notwithstanding a promise to admonish the prosecutor for shifting the burden of proof in his summation (8408, 8424), the Court refrained from doing so. Finally, the Court negated an element of the prosecution's burden of proof and amended the indictment by charging that a defendant could be guilty of the conspiracy charged even though he had no knowledge of a plan to bomb the World Trade Center.

A. Circumstantial Evidence: What Everyone Knows About a Bully.

The Court's charge on circumstantial evidence was prejudicially erroneous, because it presumed guilt, instructed the jury to disregard inferences consistent with innocence, called on the employment of community-wide prejudices and knowledge of other crimes, and placed the significance of circumstantial evidence above direct evidence. United States v. Dove, 916 F.2d 41 (2d Cir., 1990); United States v. Clark, 475 F.2d 240 (2d Cir., 1973). Obviously, the defendants on trial were the bullys in the court's example. Like the bully, it was appellant's conduct which had to be judged under the circumstantial evidence to ascertain his knowledge and intent. The Court's example started with the conclusion that the bully had committed other crimes, that the community presumed his guilt of these crimes, that anyone who believed otherwise would be foolish and that the bully had actually committed the offense on trial. Thus, the ultimate fact of guilt which the *79 jury was required to determine was stated by the Court as a foregone conclusion.

In addition, the charge presumed that prior bad acts had been committed, a notion wholly unsupported by the evidence, and it invited the jury to infer from these acts that the defendants were guilty of the instant crimes, a legally repugnant principle. See Fed.R.Evid. 404(b), 608, and 609(a); United States v. Haves, 553 F.2d 824, 827 (2d Cir., 1977).

At a minimum, the charge undermined the concept that a person may have committed an act but did not intend or know the consequences of his acts. Such a concept was critical to the appellant since the government introduced a plethora of innocuous acts together in an attempt to establish an inference of participation in a nefarious plot. In essence, the Court told the jury that a person intends the natural consequences of his acts, a charge that constitutes the type of burden-shifting that violates due process. Sandstrom v. Montana, 442 U.S. 510, 520-25 (1979); United States v. Robinson, 545 F.2d 301, 305- 06 (2d Cir., 1976).

The charge also implied that circumstantial evidence was better than direct evidence. The Supreme court has held that the weight of circumstantial evidence is no different than the weight of direct evidence. Holland v. United States, 348 U.S. 121, 139-140 (1954). The usual instruction is to tell the jury that the "law makes no distinction between direct and circumstantial evidence." 1 L. Sand, et al., Modern Federal Jury Instructions -- Criminal, Paragraph 5.01, Instruction S-2. The Court erred in departing from this formulation.

*80 Moreover, the charge is wrong because it invaded the province of the jury as fact finders. it is for the jury, not the Court, to determine which evidence, direct or circumstantial, is most probative and for the "jury ... to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference." Holland v. United States, 348 U.S. at 140. it was not the Court's prerogative to de??are one class of evidence more probative than another or to elevate the utility of circumstantial evidence. "[T]he ultimate resolution of questions of fact must be unmistakably left to the jury." United States v. Bloom, 237 F.2d 158, 163 (2d Cir., 1956). Here, however, the Court made it unmistakably clear that the circumstantial evidence was more reliable than direct evidence and quite sufficient to convict.

B. The Court's Charge That Defense Counsel's Arguments Were Wrong and That There Were "Piles of Stuff" Found in Appellant's Apartment But Not Introduced in Evidence.

The Court violated appellant's due process right to argue the absence of evidence. It told the jury to disregard his counsel's argument that only one magazine article was found during the government's search of his apartment. The Court told the jury that a whole "pile of stuff" offered into evidence by the government had been recovered. However, counsel appropriately argued the lack of evidence. See Cleary, McCormick On Evidence § 272 (1984); United States v. Hoffman, 964 F.2d 21, 24 (D.C. Cir., 1992); Unite States v. Thompson, 37 F.3d 450, 452-54 (9th Cir., 1994).

The Court's eagerness to ridicule the argument and to counter it with reference to inadmissible materials gave the appearance of bias against the appellant and infected his right *81 to a fair trial United States v. Bejasa, 904 F.2d 137 (2d Cir., 1990); United States v. Nazzaro, 472 F.2d 302, 312 (2d Cir., 1973). Here, the court's conduct is particularly troublesome. The Court violated its own ruling that the other materials ("piles of stuff") were irrelevant. Appellate Court's have overlooked judicial hostility that harms a defendant when it is provoked by intentional misconduct by his attorney. See United States v. Mickens, 926 F.2d 1323 (2d Cir., 1991); United States v. Roldan-Zapata, 916 F.2d 795 (2d Cir., 1990); United States v. Pisani, 773 F.2d 397 (2d Cir., 1985); United States v. Robinson, 635 F.2d 981 (2d Cir., 1980). However, no such rationale for the Court's conduct exists in the instant case.

Moreover, references to inadmissible evidence are condemned by the Courts, United States v. Hoffman, supra, 964 F.2d at 24; Mann v. Dugger, 817 F.2d 1471 (11th Cir., 1987); United States v. Boyce, 797 F.2d 691 (8th Cir. 1985), as are references to the existence of other evidence not adduced at trial. United States v. Armone, 363 F.2d 385 (2d Cir., 1966); United States, v. Johnson, 371 F.2d 800, 807 (3rd Cir., 1967); Wilson v. United States, 352 F.2d 889, 892 (8th Cir., 1965). Here, the comment, in addition to undermining counsel's legitimate attack on the absence of evidence, imparted to the jury that the government had other evidence that it could have brought against the appellant,. See Leon v. Kuhlman, 443 F.Supp. 50, 61 (S.D.N.Y. 1977) (Court's comments on the evidence must be fair and impartial). The statement amounted to an invitation to the jury to speculate about the evidence. *82 And, its practical affect on the jury was devastating to appellant. The comment came from the judge, and it clearly expressed his opinion that the evidence had meaning in contradistinction to counsel's argument. See United States v. Nazzaro, 472 F.2d 302, 303 (22 cir. 1973) (reversal required when "it appears to the jury that the Court believes the accused is guilty.").

The Court later weakly corrected itself and told the jury that the "piles of stuff" had "apparently" been excluded on relevance grounds, but the harm was done, and the correction was an insufficient cure. The Court's use of the word "apparently" to describe its own ruling signaled the jury that even the Court did not credit it, and that the inadmitted evidence had value. The Court did not tell the jury to reevaluate counsel's argument. It did not apologize, rather it continued its attack on other defense counsel and held the prosecutor above criticism.

C. The Court's Charge That Conspiracy to Bomb the World Trade Center Does Not Reguire Specific Intent and Knowledge

The Court rejected appellant's request to charge the jury that the government was required to prove that he had had specific knowledge and intent to bomb the World Trade Center. Rather, the Court instructed the jury only that the object of the conspiracy "is not restricted to a particular building" (9144-45, 9120- 22). The jury charge thus eliminated an element of the crime, and enabled the jury to convict appellant without knowledge and intent, for participation in a conspiracy beyond that which was charged, noticed, and alleged in the *83 government's proof. United States v. Maldonad-Rivera, 922 F.2d 934, 960 (2d Cir., 1990); United States v. Rosenblatt, 554 F.2d 36 (2d Cir., 1977).

Conspiracy is a specific intent crime, and knowledge of the conspiracy must be proven. United States v. Cangiano, 491 F.2d 906 (2d Cir., 1974). The crime rests on the act of agreeing, and it is therefore, axiomatic that the kind of agreement into which appellant entered is critical to the jury's determination of the conspiracy charge. United States v. Falcone, 311 U.S. 205, 210 (1940); Ianelli v. United States, 420 U.S. 770, 777 n. 10, (1975). As stated by this Circuit:

Proof of the essential nature of the plan is required because "the gist of the offense remains the agreement, and it is therefore essential to determine what kind of agreement or understanding existed as to each defendant."

United States v. Rosenblatt, supra, 554 F.2d at 39, citing United States v. Borelli, 336 F.2d 376, 384 (2d Cir. 1964).

Obviously, an agreement to bomb an abandoned building would, by the very nature of the building, constitute a radically different agreement than one to bomb the World Trade Center. Yet, under the Court's charge, the finding of either agreement sufficed to convict. The Court opined that a defendant would be guilty even if he intended to bomb the United Nations (8298-8301). Although this view of the agreement also deviates from that which was charged, it at least suggests an agreement similar to the one charged because it involves a large city landmark. However, the sweeping language used in the Court's instruction excised out a critical component of the agreement as charged. Even if it could be *84 argued that the conspiracy charged was broader than just the World Trade Center, that agreement at least included the World Trade Center, and to be guilty a defendant would have to have had knowledge and intent regarding that specific building in addition to others. The Court removed that element, and, without evidence, fashioned a charged agreement in which each defendant gave the others carte blanche on targets.

Failure to charge an element of the crime is reversible error. Francis v. Franklin, 471 U.S. 307, 313 (1985). An incomprehensible charge on the elements, particularly on the elements of knowledge and intent in a circumstantial evidence case, requires reversal, United States v. Clark, 475 F.2d 240 (2d Cir., 1973), as does negation of the element of specific knowledge United States v. Golitschek, 808 F.2d 195 (2d Cir., 1986); United States v. Fields, 466 F.2d 119 (2d Cir., 1972) (reversal required where Court negated element of actual knowledge that goods were stolen); United States v. Gillilan, 288 F.2d 796 (2d Cir., 1961) (Hand, J.) (charge failing to elaborate on statutory language and what type of participation was necessary to prove defendant conspired was prejudicial error).

When ascertaining the scope of a conspiratorial agreement, Courts look to the specific factual scheme alleged in the indictment. See United States v. Gavira, 740 F.2d 174, 183 (2d Cir., 1984); United States v. Provenzano, 615 F.2d 37 (2d Cir., 1980); United States v. Gleason, 616 F.2d 2 (2d Cir., 1979); United States v. Rosenblatt, supar; United States v. Treadwell, 760 F.2d 327 (D.C. Cir. 1985). As stated in United *85 States v. Treadwell, the conspiratorial agreement must be specific, and the government "cannot simply charge an offense by using general language of the statute ... but must accompany the generic language 'with such a statement of facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged.' " Treadwell, supra, 760 F.2d at 337; United States v. Goldberg, 587 F. Supp. 302, 310 (S.D.N.Y., 1984), rev'd on other grounds 756 F.2d 949 (2d Cir., 1985); United States v. Abrams, 539 F. Supp. 378 (S.D.N.Y., 1982); cf. United States v. Salzar, 485 F.2d 1272, 1277 (2d Cir., 1973). A statute-tracking indictment will also fail to fulfill Fifth Amendment due process and notice requirements when, as here, a defendant has been denied a bill of particulars on the specific nature and scope of the agreement charged. [FN15] United States v. Bortnovsky, 820 F.2d 572 (2d Cir., 1987). United States v. Davidoff, 845 F.2d 1151 (2d Cir., 1988): United States v. Salazar, 485 F.2d 1272, 1278, (2d Cir., 1973). F.R. Crim. P. 7(f).

FN15. Appellant moved prior to trial for a bill of particulars seeking further definition of the scope and objects of the conspiratorial agreement charged to him, but the motion was denied. (See Appellant's Appendix).

Here, the Court denied appellant his request for particulars and then relied exclusively on the objects section of the indictment when defining the vague scope of the conspiratorial agreement to the jury. The Court thus used a vague statute tracking description of conspiracy effectively *86 diluting the government's burdens on the elements of knowledge, intent, and scope of the conspiratorial agreement, and ignoring other aspects of the indictment and the government's openings and summation which further clarified the charge. See United States v. Whitehorn, 710 F. Supp. 803, 817 (D.D.C., 1989) (allegations of specific bombing targets significant to sufficiency of indictment on conspiracy charge).

A review of the indictment beyond the objects provision demonstrates a specific focus on the World Trade Center. The indictment is replete with references to this particular building. The statutory crimes are qualified with the allegations that the World Trade Center was the specific building involved in the substantive offenses. Two of the overt acts set out in the indictment name the World Trade Center as the target for the bombing. See United States v. Kahn, 381 F.2d 824 (7th Cir., 1967) (referring to overt acts and substantive charges to clarify conspiracy count); United States v. Kilpatrick, 821 F.2d 1456 (10th Cir., 1987) (reading indictment as a whole to ascertain sufficiency of conspiracy charge). Moreover, the government's opening and summation and the focus of their presentation at trial bound them to a charge of conspiracy to bomb the World Trade Center. United States v. McKeon, 738 F.2d 26, 30 (2d Cir., 1984). In opening, the prosecution defined the charge as follows:

the basic idea of this case is very simple: these four defendants ... planned and carried out the terrorist bombing of the World Trade Center complex on February 26 ... All the charges that are contained in the indictment either arise from or relate to that conspiracy: the conspiracy entered into by those four defendants and others to bomb buildings here on *87 American soil, and specifically carrying out the bombing of the World Trade Center.

(19). In summation, they reiterated, "the defendants launched a devastating terrorist attack on the World Trade Center ... these defendants before you were the ones who carried out and planned the World Trade Center bombing." (8302).

The Court's charge thus lessened the burden of proof by eliminating specific knowledge and intent and allowing the jury to convict for a conspiracy different than the one actually charged, See United States v. Maldonado-Rivera, supra, 922 F.2 at 960, and it effectively amended the indictment. Stirone v. United States, 361 U.S. 212 (1960). Constructive amendment occurs when:

the terms of the indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment.

United States v. Mollica, 849 F.2d 723, 729 (2d Cir., 1988), (citing United States v. Hathaway, 798 F.2d 902, 910 (6th Cir., 1986). Here, the "essential nature" of the conspiratorial agreement to bomb the World Trade Center was broadened to an agreement to bomb any buildings, consequently, the constructive amendment clearly raised the possibility that appellant was convicted of an offense not passed upon by the grand jury, an occurrence that warrants reversal of the conviction. Stirone, 361 U.S. at 219 (constructive amendment is "fatal error"); see also United States v. Weiss, 752 F.2d 777, 787 (2d Cir., 1985).

Moreover, the scope of the conspiratorial agreement was critical to the application of Pinkerton liability for the *88 other seven substantive counts in the indictment. A defendant is not guilty of the substantive offenses committed by a co-conspirator if the acts underlying those offenses did not "fall within the scope of the unlawful project" undertaken by the defendant. Pinkerton v. United States, 328 U.S. 640, 647-48 (1946). Here, without a determination that appellant had knowledge of, and agreed to participate in, a plot to bomb the World Trade Center, Pinkerton could not be fairly applied. The Court's charge allowed the jury to find appellant guilty of the seven substantive offenses of bombing the World Trade Center, without a finding of specific knowledge or intent, and then to use that finding to "spillover" guilt in reverse to the one vague conspiracy charge. United States v. Glenn, 828 F.2d 855 (1st Cir., 1987); United States v. Salmon, 944 F.2d 1106, 1117 (3rd Cir., 1991).

POINT IV

THE TRIAL COURT'S EX PARTE AGREEMENT WITH THE PROSECUTION TO CONCEAL THE EVIDENCE, ITS MISREPRESENTATION TO DEFENSE COUNSEL, AND THE PROSECUTOR'S MISREPRESENTATION TO THE JURY THAT A WITNESS WAS NOT A PAID GOVERNMENT INFORMANT ON THIS CASE, THE COURT'S CONCEALMENT OF OTHER RELEVANT FACTS ABOUT PROSECUTION WITNESSES, AND ITS PRECLUSIONS OF CROSS-EXAMINATION CONSTITUTED REVERSIBLE ERROR IN VIOLATION OF APPELLANT'S FIFTH AND SIXTH AMENDMENT RIGHTS TO EFFECTIVE COUNSEL, DUE PROCESS, AND CROSS-EXAMINATION, AND HIS DUE PROCESS RIGHT TO AN IMPARTIAL JUDGE

The trial Judge held an ex parte conference in chambers and agreed with the prosecutors to withhold from the defense the fact that a prosecution witness had been paid by the prosecution to inform on appellant's alleged co-conspirator, Sheik Abdel Rahman. The Court then affirmatively *89 misrepresented to the defense that the witness' cooperation "had nothing to do with this case" (5863), even though it wrote in another context, "The criminal transaction tried in the case at bar forms a part of the charges in Rahman ....." United States v. Salameh, 856 F.Supp. 781, 784 (1994). In another such ex parte conference, the Court agreed with the prosecutor to conceal from the defense prior perjury about a prior conviction by the witness, Carl Butler, who, the prosecution claimed, saw appellant "barking orders" at the bomb factory. [FN16] The Court further precluded the defense from eliciting facts about FBI coercion of the witness Ashraf Moneeb, who the prosecution claimed identified appellant as the man who helped Salameh and Yousef find the apartment used as the bomb factory. The Court then allowed the prosecutor to redirect the witness on the absence of such pressure.

FN16. The transcripts of these ex parte proceedings were sealed during the trial. They were unsealed in May, 1995, for the purposes of this appeal.

The ex parte agreements by the Court and prosecution, and the Court's affirmative act of misrepresentation furthering prosecution efforts to deprive the defense of relevant evidence of the bias and motives of witnesses, exemplified the appearance of partiality of the trial Judge repeated in other behavior and rulings throughout the case (see Points, infra). Offut v. United States, 348 U.S. 11 (1954); United States v. Martinez, 667 F.2d 886 (10th Cir., 1981); Webb v. Texas, 409 U.S. 95 (1972). Concealment of the exculpatory evidence of Moharam's bias and preclusion of cross-examination into the *90 other matters concealed and proscribed constituted violations of appellant's right to confrontation under the Sixth Amendment (Delaware v. Van Arsdall, 475 U.S. (1986)), and his right to the disclosure of exculpatory evidence under Brady v, Maryland, 373 U.S. 83 (1963); Reutter v. Solem, 888 F.2d 578 (8th Cir., 1989).

In addition, the ex parte discussions with the government violated appellant's right to a fair trial and due process of law. As stated by the First Circuit in Haller v. Robbins, 409 F.2d 857, 859 (1st Cir., 3969), "not only is it a gross breach of the appearance of justice when the defendant's principal adversary is given private access to the ear of the court, it is a dangerous procedure." Here, the Court excluded the exculpatory Moharam and Butler evidence without any say from the defense. This drastic measure inherently offends due process, In Re Grand Jury Subpoena Directing Taylor to Appear and Testify, 567 F.2d 1183, 1188 (2d Cir., 1977), and should only be utilized if demanded by a compelling interest. Id; Roviaro v. United States 353 U S. 53 (1957). The government's general allegation of reprisal as to Moharam does not reach this level, particularly because only Moharam's "concerns" were mentioned and he was already in protective custody. Compare with United States v. Arroyo-Angulo, 580 F.2d 1137 (2d Cir., 1978)(actual death threats), United States v. Bell, 464 F.2d 667 (2d Cir., 1972) (confidentiality of airplane hijacking profile). Furthermore, there was no basis for the Court to speculate about the usefulness of the Butler impeachment evidence without obtaining input from the defense. *91United States v. Mote, 582 F.2d 654, 662 (2d Cir., 1978). even when legitimate grounds for restriction exists, this Court has condoned measures less severe than total defense exclusion, like the presence in chambers of defense counsel to maintain the adversarial balance. Bell, supra. On this record, the total removal of the defense cannot be justified. Rushen v. Spain, 464 U.S. 114 (1983).

The Supreme Court in Delaware v. Van Arsdall, supra, held that a defendant has a constitutionally protected right under the confrontation clause to cross-examine witnesses about their bias and their motivation to lie. There, the Court stated:

[A] Criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby "to exposeto the jury the facts from which the jurors... could appropriately draw inferences relating to the reliability of the witness."

Delaware v. Van Arsdall, supra, at 680, quoting Davis v. Alaska, 415 U.S. 308, 318, (1974); see also United States v. Abel, 469 U.S. 45, 50, 51 (1984) (holding that bias evidence was admissible and relevant under Fed. R. Evid. 401). Clearly, the lines of attack counsel was prevented from developing on cross examination directly impacted on the witness' credibility and the Court's orders unequivocally conflicted with the confrontation clause.

Without question, the fact that Moharam received money and may have received favorable treatment from the government on his counterfeiting charge in exchange for providing evidence against Sheik Rahman and his followers, including appellant, was relevant to his credibility. Even a *92 hope of leniency on criminal charges bears on a witness' veracity. United States v. Towne, 870 F.2d 880, 886 (2d Cir., 1989). Here, substantial consideration may have been extended to the witness, or he may have harbored hopes of such, however, the Court stifled exploration of these potential facts. Moreover, Moharam gave personal opinion and private conversation type testimony easy to fabricate, and his motives to do so were significant and salient. Thus, it was also clearly appropriate to elicit his desire to stay in the good graces of the government for financial gain. A witness' financial stake in the outcome of a case is highly probative of his motivation to lie. United States v. Reed, 437 F.2d 57 (2d Cir., 1971). Instead, the prosecutor capitalized on the concealment of Moharam's penal and financial interest in this case by misrepresenting to the jury that he had had none.

What is Mr. Abdellah's response? Truth and deception. Maharam's testimony must have been paid for. That's just not true. The witness told you he was not paid for testifying. He had lost his business because he was a witness in this case. Does anyone think Mr. Maharam did it for the money? You think he wanted to be here?

(9056)

Furthermore, the government's rationale for concealing Moharam's status was merely Moharam's "concern," his preference that it not be revealed (5857). No threats or other basis for concealment were even offered. Moharam's "concern" did not raise a sufficient basis to restrict cross-examination, particularly since Moharam chose the role of paid informant to begin with, and he was in protective custody (AUSA letter dated January 2, 1994, See Appellants' Appendix). The government cannot create the circumstances giving rise to a motive to *93 falsify testimony and then offer the testimony without the motive. An informant's status could always be concealed that way, on grounds of concern for safety. Any such fears can, as they were here, be dealt with by witness protection. See Davis v. Alaska, 415 U.S. 308 (1974); Roviaro v. United States, 353 U.S. 53 (1957); Alford v. United States, 282 U.S. 687 (1931) (Confrontation rights outweigh concerns for protecting anonymity of juvenile offenders).

The Court also concealed 40 Pamrapo tenant Butler's perjury about his criminal conviction. The witness served a ten-year prison sentence in Attica and lied about this fact on court documents and in his Air Force enlistment application. In addition, he had been AWOL and was unfavorably discharged from the service. All of these facts were kept from the defense and hence the jury. His false statements about his conviction impacted directly on his untruthfulness and were therefore, highly probative. Prohibiting cross-examination into these matters constituted egregious error. Fed.R.Evid. 608; United States v. Jones, 900 F.2d 512, 520-21 (2d Cir., 1991); United States v. Lanza, 790 F.2d 1015, 1020 (2d Cir. 1986); Lewis v. Baker, 526 F.2d 470 (2d Cir., 1975).

Ashraf Moneeb's credibility was thrown into question by pressure placed upon him by the FBI. He was handcuffed and subjected to a gunpoint interrogation when the FBI recruited his services as a witness against appellant. He was threatened with deportation, his grant of citizenship was held in abeyance, and his green card was retained by the FBI pending his trial testimony. First the Court precluded cross-examination about these and other circumstances of coercion, *94 then it actually allowed the government on redirect to elicit testimony that he was "not pressured to make things up." Pressure placed on a witness by government interrogators is undoubtedly relevant to credibility. United States v. Shyllon, 10 F.3d 1 (D.C. Cir., 1993). Here, Moneeb was roommates with Salameh and Yousef, and was placed on the government's extensive list of unindicted co-conspirators. Questioning about the FBI's interrogation may very well have elicited that he testified falsely against the appellant to stave off charges that he was a co-conspirator and to avoid other specific coercive measures used against him. Moreover, fear of deportation is a very obvious and understandable motive to lie. There was no basis whatsoever to limit cross-examination on these matters.

The confrontation clause violations were not harmless beyond a reasonable doubt. Delaware v. Van Arsdall, supra. The case against appellant, which rested on his supposed participation in a conspiracy, consisted of cumulative evidence of mere presence and association sprinkled with innocuous facts and inadmissible evidence. The testimonies of the three witnesses here were emphasized by the prosecution in summation as central to their case (8365-70, 8415, 8475-77), and foreclosure of cross-examination, particularly on motive to lie, is not harmless error and never collateral. United States v. Lawson, 683 F.2d 688 (2d Cir., 1982); United States v. James, 609 F.2d 36 (2d Cir.,1979).

*95 POINT V

THE PROSECUTOR'S IN-COURT PROMPTING OF A WITNESS WITH A SUGGESTIVE PHOTOSPREAD TO IDENTIFY APPELLANT INSTEAD OF A JUROR DENIED APPELLANT A FAIR TRIAL AND DUE PROCESS OF LAW

At trial, Willie Moosh, a gas station attendant, identified a juror as the driver of a car who bought gas for a yellow Ryder van in the early morning hours before the explosion. The juror, not appellant, was identified despite the facts that appellant was sitting at the defense table and that the witness' attention was drawn to him by an objection posed by counsel standing beside him. The Court nonetheless, permitted the prosecutor to prompt the witness to change his identification by showing him a photospread containing appellant's picture initialed by Moosh. [FN17] Then after an overnight recess, on redirect examination, the prosecution was permitted to elicit the identification of appellant.

FN17. Appellant has separately applied to this Court for a remand and a new trial on the grounds that the pretrial photographic identification procedures must have been unduly suggestive and that the trial attorney's failure to request suppression and a hearing was ineffective assistance of counsel

In essence, the prosecution was permitted to inappropriately use a recollection refreshment technique, without foundation in an absence of recollection, and thereby to unduly suggest an in-court identification that was unreliable from the outset. It was erroneous to allow the government to prompt the witness after he has made an unequivocal identification of a juror who looked nothing like appellant (T.5229-30), and there was no indication that he needed his memory refreshed. it was grossly unfair to alter *96 identification testimony with a suggestive identification procedure. And, the in-court identification should have been excluded because it was unreliable and not based on an adequate independent source. Unquestionably, the identification deprived appellant of a fair trial in violation of due process of law.

It was improper to prompt him with photographs when there was no indication that his memory needed to be refreshed. United States v. Felix-Jerez, 667 F.2d 1297, 1300 (9th Cir., 1982). The error was compounded by the use of a photospread which suggested the identification of appellant. It allowed the government to manipulate the device of refreshing recollection as a subterfuge to improperly suggest identification testimony that was expected of the witness. Such a practice is condemned by the Courts. United States v. Ricardi, 174 F.2d 883, 889 (3rd Cir., 1949); see also United States v. Zackson, 12 F.3d 1178, 1184 (2d Cir., 1993) ("impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible," citing United States v. Morlong, 531 F.2d 183, 190 (4th Cir., 1975)). The harm was severe here because, unlike other testimonial evidence that is refreshed, identification evidence implicates concerns for reliability that reach constitutional dimension. Here, Moosh's initials were on appellant's picture contained in the photospread. An identification based on a single photograph or a picture that highlights the defendant is unduly suggestive. Simmons v. United States, 390 U.S. 377 (1968); United States v. Archibald, 734 F.2d 938, 940 (2d Cir., 1984). Moreover, *97 appellant was still situated in the courtroom when the photograph of him was shown. A comparison between the pictures and the persons in the courtroom would obviously lead to a positive identification regardless of the lack of suggestiveness of the photographs. See Moore v. Illinois, 434 U.S. 220, 229 (1977).

At a minimum, a Wade hearing should have been held to ascertain the reliability of the in-court identification of appellant, because it followed not only the witness' failure to identify him, but his affirmative choice of someone else. United States v. Maldonado-Rivera, 922 F.2d 934, 975-76 (2d Cir., 1990) compels such a minimum safeguard. See also United States v. Concepcion, 983 F.2d 369, 378-79 (2d Cir., 1992) in Maldonado-Rivera a witness was unable to identify the defendant at a mid-trial Wade hearing until he was shown a photospread used at a law enforcement conducted pretrial identification procedure. This Court held that because the witness had failed to make a contemporaneous in-court identification at the Wade hearing, an in-court identification at trial in front of the jury could not proceed without "further consideration" of his actual observations of the perpetrator prior to the involvement of law enforcement. The Court adopted this reasoning despite its conclusions that the witness had identified the defendant during the law enforcement conducted pretrial procedures that were found to be unsuggestive, and that the witness' recollection had been refreshed at the mid-trial Wade hearing with an unsuggestive photospread. Addressing its concern that the witness' current inability to identify the defendant impacted on the reliability of the in-court identification *98 before the jury, the Court pointed out that:

"[R]ecollection should (so far as can be expected) correspond to and represent the impression originally gained by observation (emphasis in original)."

Maldonado, 922 F.2d at 976, citing 3 Wigmore on Evidence § 725 (Chadbourn rev. ed. 1970). It continued:

Where, as here, the means of refreshing the recollection was the display of an unsuggestive array of photographs, our touchstone is the witness's actual observations prior to any law enforcement involvement.

Id. The Court then satisfied itself that the witness had had an adequate opportunity to initially observe the defendant before it approved the in-court identification. The Neil v. Biggers criteria were applied to assess the reliability of the in-court procedure. [FN18]

FN18. The factors in Neil v. Biggers, 409 U.S. 188, 199-200 (1972) are:

1. opportunity of the witness to view the defendant prior to the identification procedures;

2. the accuracy of the prior description;

3. the level of certainty of the witness at the time of confrontation; and

4. the delay between the initial viewing and the identification procedure.

Obviously, the facts of the instant case present a more troublesome scenario than the one faced in Maldonado-Rivera. First, Moosh did not demonstrate an inability to make an identification. He unequivocally identified a juror. This raises the concerns about reliability above those contemplated in Maldonado-Rivera because appellant was actually sitting at the defense table and the witness' attention was alerted to him as a result of an objection. In Maldonado-Rivera the defendant was situated in the audience during the Wade hearing. Second, it was defense counsel who prompted the identification in Maldonado-Rivera by showing the photospread to the witness on *99 cross-examination at the hearing. As noted in Maldonado-Rivera:

[T]he prosecutor may not properly engage in procedures that are designed to manufacture an identification where there was in fact no recognition or to turn a tentative identification into one that is certain.

Id. at 975-976; see also Solomon v. Smith, 645 F.2d 1179, 118586 (2d Cir., 1981). Here, the identification was forced out of the witness through an improper technique utilized by the government. And, lastly, unlike Maldonado-Rivera, there was no finding that the law enforcement conducted pretrial identification procedures were proper. Trial counsel did not move for a hearing on those procedures, and appellant has contended in a separate motion for remand filed in this Court on grounds of ineffective assistance of counsel that the pretrial procedures must have been suggestive, and that a motion should have been made to suppress and a hearing held to test the reliability of the in-court identification.

In any event, on the trial record it is apparent that an application of the Biggers criteria to the instant facts compel suppression of the in-court identification. Moosh's actual observations at the gas station do not supply a strong independent basis to save the in-court identification. Moosh's opportunity to view the suspect was not extended and was uneventful. At trial, Moosh described viewing a driver of a car who paid for gas at 3 or 4 o'clock in the morning. As a gas station attendant there was nothing unusual about this occurrence. Moreover, when explaining the misidentification of two jurors, the witness stated that many Arab's with beards came to the gas station (5043-44). Certainly, the witness' degree of inattentiveness is a factor cutting against the *100 reliability of an in-court identification ten months later.

Additionally, the accuracy of Moosh's description given to the FBI prior to trial does not match that of appellant and is inconsistent with his trial testimony. When he was interviewed he told the FBI that the driver of the car had dark hair (4057, 4062). However, at trial he described the driver as having orange hair. Moreover, at trial he was specific and stated that the driver was white and had freckles and a beard (5043-44). No such detail was originally provided to the FBI.

Moreover, it appears his identification was unfairly influenced by media coverage. Willie Moosh had already seen television and newspaper reports with pictures of the suspects prior to viewing the photographic arrays (4019, 4989- 4990). Photographs of the appellant were undoubtedly part of those reports. in addition, one must factor in the newsworthiness of Moosh's account. He was turned into a public figure overnight and was certainly pressured to stick to the story that brought him into the spotlight.

Furthermore, Moosh was a witness who was easily swayed by the FBI. He was a legal resident seeking citizenship in the United States and could not speak English and used his wife as an interpreter when he was initially questioned by the FBI (4040). It is evident that someone in his position would want to cooperate with the government's agenda. In fact, his testimony suggests strong partisanship with the government. He described his role as a prosecution witness "defending his country" (5010). In addition, the government paid him $45,000 to cooperate (4049-53). Although the prosecution contended *101 that the money was to offset his departure from the gas station, a move for safety purposes, he still remained at the same residence at the time of trial. Also, $45,000 represents a substantial incentive to provide favorable information, especially when considering the modest compensation given to a gas attendant and the fact that he could continue to work elsewhere to supplement the government's award.

Clearly, the failure to exclude the in-court identification cannot be seen as harmless. See Concepcion, at 379-80. The case against appellant was wholly circumstantial. Appellant was linked to a conspiracy by his mere association with co-defendants and through innocuous and inadmissible evidence that failed to sufficiently prove his participation. Identifying appellant at the gas station as the one who paid for the gas of the yellow Ryder van on the morning of the explosion had a devastating impact on the jury. Without question, the introduction of Moosh's identification was not harmless.

Moreover, although trial counsel did challenge the in-court prompting of the in-court identification he did not press for a mid-trial Wade hearing. The inappropriate in-court prompting of the identification itself warrants reversal. In any event, trial counsel's failure to request a Wade hearing constituted ineffective assistance of counsel. The identification of the juror rendered suspect any pre-trial procedures used to obtain an identification of appellant, and it was inexcusable for the error to go unaddressed, especially in light of this Court's recent treatment of the issue in United States v. Maldonado-Rivera, supra, and Untied States v. *102 Concepcion, supra, Strickland v. Washington, 466 U.S. 668 (1984).

POINT VI

THE PROSECUTOR'S COERCIVE QUESTIONING OF HIS WITNESS TO OBTAIN DESIRED ANSWERS, THE COURT'S INTERRUPTION OF CROSS-EXAMINATION ON THE SUBJECT OF THE WITNESS' RESULTANT LIE, AND THE COURT'S INSTRUCTIONS AMELIORATING THE INCIDENT AND SUPPLYING NEUTRALIZING TESTIMONY, VIOLATED THE RULES OF EVIDENCE AND DEPRIVED APPELLANT OF THE CONSTITUTIONAL RIGHTS TO CROSS-EXAMINATION, FAIR TRIAL, AND DUE PROCESS OF LAW

A prosecution witness, Blessing Igiri, lied on cross-examination, testifying that he had not talked to the prosecutor during a break in direct examination just prior to a self-contradictory change in testimony. The Court then interrupted cross-examination on this subject and gave instructions in open court that ignored the lie, that "there is nothing wrong" and "it is required" to have such talks, and supplying testimony that the prosecutor told the witness "not the exact words ... basically what he was going to ask you, yes?" (3904-06). The witness had been effectively coached, at least during his initial direct examination when, despite his repeated protestations to the contrary, the prosecutor was permitted, over objection, to repeatedly ask for the answers the witness later gave after the break and the off-the-record discussion with the prosecutor.

The Court's conduct violated appellant's rights to confront and cross-examine the witnesses against him and to a fair trial. Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986); Davis v. Alaska, 415 U.S. 308 (1974); United States v. Abel, 469 U.S. 45, 50 (1984); Henry v. Speckard, 22 F.3d 1209 (2d Cir. 1994). In the instant case, the Court did more than *103 completely bar a challenge to the witness Igiri's credibility without a legitimate reason; it actually rehabilitated him and negated any suspicions that the jury may have had about the possible government induced perjury and the fact that the witness lied.

Government influence, suggestion, or subornation of perjury is a fertile area for challenging a witness' credibility. See United States v. Shyllon, 10 F.3d 1 (D.C. Cir., 1993); United States v. Hayward, 6 F.3d 1241, 1254-55 (7th Cir., 1993); McConnell v. United State, 393 F.2d 404, 406-07 (5th Cir., 1968). Moreover, the witness' lie was significant to his credibility for two reasons. First, it was an independent basis to impugn Igiri's veracity because it proved that he was an untruthful witness. Furthermore, it showed that he was hiding something about his conversations with the prosecutor and therefore it impled that he may have perjured himself due to improper government influence.

The actual likelihood of government influence was underscored by the direct examination. The prosecutor led Igiri in a blatantly coercive manner in an effort to wrench from him the substantive testimony the prosecutor wanted. The defense's objection to this type of direct examination should have been sustained in the first instance. Leading on direct-examination is generally not allowed, Fed.R.Evid. 611(c), and it cannot be employed to create a false memory, United States v. McGovern, 499 F.2d 1140, 1142 (1st Cir., 1974), United States v. Durham, 319 F.2d 590, 592 (4th Cir., 1963), especially when the witness is not hostile. Ellis v. City of Chicago, 667 F.2d 606, 612 (7th Cir., 1981). Here, the *104 government's witness unequivocally denied seeing Salameh leave the facility in a yellow Ryder van followed by a sedan, despite repeated coercive questions designed to change his mind. Without a doubt the viability of the defense's challenge to testimony suddenly changed thereafter during the break was clear to the Court, and the interference with the cross-examination was unjustified.

In addition, the Court's conduct deprived appellant of a fair trial in violation of due process of law. In particular, the Court's instructions had the effect of misleading the jury into thinking that Igiri's mid-testimony discussions with the prosecutor and his lie about the discussions were meaningless. [FN19] And, the Court's sua sponte interruption of the cross-examination to protect and rehabilitate the witness and to supply the witness' testimony in the Judge's own words, amounted to a gross display of the appearance of judicial bias against the defense. United States v. Mazzilli, 848 F.2d 384 (2d Cir., 1988). The Supreme Court in Ouercia v. United States, 289 U.S. 466, 470 (1933) earned about the harm that flows from a Judge's unwarranted commentary on the evidence and ordered that "he may not either distort it or add to it."

FN19. The Court's conduct also had the effect of keeping impeachment evidence from the defense. See Brady v. Maryland, 373 U.S. 83 (1963); United States v. Giglio, 405 U.S. 150 (1972); United Stated v. Bagley, 473 U.S. 667 (1985).

In the instant case, the Court's comment that lawyer's are "supposed" to speak to witnesses and that there was "nothing wrong" with it was a gross misrepresentation of the circumstances and it unfairly minimized the possibility *105 that Igiri was perjuring himself at prosecution insistence. while lawyers do prepare witnesses, they do not routinely do so in the middle of their testimony, and they certainly do not do so in order to change what a witness has previously insisted in open Court was the truth. Here, contrary to the Court's characterization, the discussion with Igiri was highly irregular. The conversation was mid-testimony not pre-testimony, and given the prior direct testimony and the sudden change after the break, the potentiality for the inducement of perjury was substantial. The court's illustration of the facts was thus inaccurate, and the commentary unfairly neutralized significant evidence of falsified testimony. Id; see also United States v. DeSisto, 289 F.2d 833, 834 (2d Cir., 1961) (court cannot usurp role of jury or representative of parties).

Harmful error analysis concludes that reversal is required. Delaware v. Van Arsdall, supra, 475 U.S. at 684. In the instant case, the Court's interposition completely blocked a challenge to Igiri's credibility, demonstrated its belief in the rectitude of the witness and the prosecution's handling of the witness, and diffused damage to the prosecution's integrity in general, which was questioned in the same way when the witness Moosh changed his testimony after an overnight break (See Point V, supra). Moreover, Igiri was not an inconsequential witness. Although Igiri continued to deny seeing a sedan accompanying the Ryder Van, his altered testimony coupled with that of a second witness who said he did see a sedan, implied that appellant, who drove a sedan, was present during a delivery of hydrogen gas canisters the day before the explosion. Had Igiri been permitted to stick to the *106 initial testimony he so adamantly maintained before the break, there would have been a direct contradiction between the two witnesses. Thus, this evidence, which was argued as relevant to the outcome of appellant's case, amid the other insufficient circumstantial evidence against him and the failure of the government to establish that he was ever present with the co-appellant's during the times and at places deemed critical by the prosecution (See supra Point I), would have been neutralized. Furthermore the evidence was directly damaging to co-defendant Salameh, and as such in a conspiracy prosecution, where the evidence of associa??on was str??g, the prejudicial spillover was obvious.

The Court's behavior overextending itself to protect the witness suggested to the jury that the government's cause needed to be actively defended when it was compromised by even government witnesses. This act undoubtedly accentuated the Court's appearance of partisanship with the Government and disturbed the "appearance of impartiality and judicial detachment." United States v. Nazzaro, 472 F.2d 302, 313 (2d Cir., 1973).

Additionally, the Court's appearance of bias against the defense was not an isolated event. United States v. Rosa, 11 F.3d, 315, 343 (2d Cir., 1933). Rather, the Court's remarks, conduct, and rulings had the effect of consistently undermining the defense and appearing to show favoritism toward the prosecution (See the other Points herein). The undermining of the Igiri cross-examination coupled with the other remarks and rulings establishes the appearance of pervasive bias against the defense and a violation of their right to an *107 impartial Court. United States v. Edwardo-Franco, 885 F.2d 1002, 1010 (2d Cir., 1989).

POINT VII

ANGER, FEAR. AND HATRED AGAINST APPELLANT WERE INSTILLED IN THE JURY BY DAYS OF VICTIMS TESTIMONY GRUESOME AUTOPSY PHOTOS, MEDICAL EXAMINER TESTIMONY, AND ORAL RECITATIONS OF HATE LITERATURE IRRELEVANT TO GUILT AND DENYING APPELLANT A FAIR TRIAL AND DUE PROCESS OF LAW.

Five days of testimony from wore than a score of witnesses recounting horrifying and painful experiences about dead and injured victims to the point where jurors were overwrought with emotion and reduced to tears; gruesome photographs of dead injured victims; the Medical Examiner's reiteration in graphic detail of the injuries while referring to the pictures, and inflammatory hate literature about a violent holy war on Americans, Jews and Christians all were admitted against appellant without relevance but with blinding prejudicial impact. That death and injury had occurred as a result of the explosion was stipulated to and undisputed. The hate literature was unsigned, unauthored, unauthenticated, and there was no evidence of its adoption by appellant. Nor did he even possess it.

Evidence that "arouse[s] the jury's passions to a point where they would act irrationally in reaching their verdict," is so unfairly prejudicial that it must be excluded. United States v. Robinson, 560 F.2d 507, 514 (2d Cir., 1977); F.R.Evid.403. The Advisory committee on the Federal Rules of Evidence, defines unfair prejudice as "a tendency to suggest decision on an improper basis, commonly, though not necessarily an emotional one." Notes of Advisory Committee on Proposed *108 Rules, Rule 403.

Clearly, as in this case, a jury's ability to make a rational or proper decision can be destroyed by the needless presentation of gruesome evidence, see United States v. Leonard, 524 F.2d 1076, 1091 (2d Cir., 1975) ("bloody shirt"); United States v. Konovsky, 202 F.2d 721 (7th Cir., 1953)(reversal required due to admission of shocking photographs of riot and destruction on charge of failure to disperse a mob) or by evidence that suggests a defendant's hatred toward religious groups and which offends the jury's sensibilities. See United States v. Lane, 883 F.2d 1484, 1499 (10th Cir., 1989). Moreover, the probative value of even relevant evidence is diminished under a Rule 403 analysis if that evidence is cumulative and the party stipulates to the proof, or if the fact which the party seeks to establish is not called into question by the opponent. United States v Edwards, 631 F.2d 1049, 1051 (2d Cir., 1980); see United States v. Thai, 29 F.3d 785, 813 (2d Cir., 1994). Of course, evidence that is irrelevant under Federal Rule of Evidence 401 has no probative value and therefore does not even carry weight in a 403 balancing test. United States v. Harvey, 991 F.2d 981, 996 (2d Cir., 1993).

In the instant case, the Court's rulings admitting the evidence cannot be supported under any standard of review. The prosecution began its case with five days of testimony from over 20 witnesses about their horrifying experiences caused by the explosion. The nature of this evidence was particularly prejudicial in light of the microcosmic portrayal it gave of the different lives that were affected by the explosion. The *109 presentation consisted of repeated stories of pain and suffering blatantly proffered for the sole purpose of generating anger and hatred toward the defendants. This testimony, which actually drove jurors to tears, epitomizes the emotion provoking evidence that directly undermines the jury's ability to reach a rational verdict. See United States v. Robinson, supra.

This evidence was not even relevant to an issue in dispute. It was never contested that an explosion occurred and that people were killed and injured. Nevertheless, the Court permitted an accumulation of stories that merely established death and injury by explosion over and over again. The prejudicial and cumulative Stature of this evidence carried such intense emotional fervor that the probative value, if any, was smothered by the prejudicial effect.

If that was not enough, the prosecution was permitted to horrify the jury with ten gruesome photographs of dead and injured victims in a case where neither the cause of death nor the intent to cause death were at issue. The jury was shown graphic photographs of dismembered bodies, a dead pregnant woman, a head with a hole in it, and dead bodies laid out. This photographic evidence was further embellished by the Medical Examiner who explained, in graphic detail, the cause of death and was permitted to enhance his inflammatory testimony by referring to the photographs. The imagery raised by this photographic and testimonial cause of death evidence cannot be justified under a Rule 403 analysis. It's prejudicial effect was overwhelming. Moreover, in light of the stipulation, the probative value was nil, especially coming in the wake of the *110 testimony about the heart wrenching experiences from the 20 witnesses.

The jury's emotional anger and hatred against appellant were further fanned by the highly inflammatory hate literature recovered from co-appellant Ajaj and admitted without limiting instruction. [FN20] The jury was exposed to lengthy oral recitation of passages from the literature directed at them as targets, saw a videotape about violent "Jihad" and heard offensive racist statements describing hatred toward Americans, Jews and Christians. The messages also depicted the authors of the literature and videotape as fanatical Islamic terrorists, a label that was then imputed to appellant. The evidence also constituted a pointed personal threat to the jurors who were Americans, Christians and Jews. Unquestionably, it directly undermined their ability to be fair and to render a rational verdict.

FN20. Appellant also moved for a severance in light of the Court's ruling to admit the Ajaj materials. The denial of severance is raised in a separate point. See Point IX, infra.

The ruling to admit this evidence was particularly egregious because the literature was unsigned and unauthored by the defendants and there was no evidence that appellant adopted it. Indeed, there was no proof that possession of literature supported the inference of motive to commit crime, and to permit such an inference violated First Amendment freedom of speech and expression. United States v. Harvey, supra, at 995 ("If the First Amendment means anything, it means that the State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch"); *111 United States v. Giese, 597 F.2d 1170 (9th Cir., 1979) (permitting jury to hear title of political anti-Government book only because the book contained fingerprints of conspirators and therefore established the fact of association, but otherwise prohibiting use of literature to "prove violent character" or "induce the jury to punish ... for reading and recommending radical literature"); United states v. Jacobson, 112 S.Ct. 1535, 1541 (1992)( "evidence that merely indicates a generic inclination to act within a broad range, not all of which is criminal, is of little probative value in establishing predisposition"). For all these reasons it also should have been excluded on relevance grounds under Rule 401. [FN21] Furthermore, the material was obtained from Ajaj when he was attempting to enter the United States six months before the explosion occurred. There was no connection between appellant and Ajaj, let alone between appellant and the materials Ajaj possessed. United States v. Falley, 489 F.2d 33 (2d Cir., 1973). In fact, Ajaj was taken into custody upon his arrival into the United States by INS and remained incarcerated until after the explosion.

FN21. Even many of the various references to guns, poisons and explosives contained in the materials had no relationship to the material allegedly used to damage the World Trade Center.

The Court also committed reversible error by admitting other testimony and documents, described in the Statement of Facts, supra, Section VIII, which had no probative value but which substantially prejudiced the appellant.

*112 POINT VIII

THE COURT'S REFUSAL TO CONDUCT THE REQUESTED PROBING VOIR DIR OF THE JURY ON BIAS AGAINST MUSLIMS AND REACTION TO HATE LITERATURE, WHERE THE CRIME CHARGED WAS VIOLENT, THE APPELLANT WAS A MEMBER OF A RACIAL, ETHNIC AND RELIGIOUS GROUP DIFFERENT THAN THE JURORS, AND THE PROSECUTION PRESENTED INFLAMMATORY EVIDENCE CONSISTING OF LITERATURE ADVOCATING RELIGIOUS WARS IN THE NAME OF ISLAM, DENIED APPELLANT THE SIXTH AMENDMENT RIGHT TO AN IMPARTIAL JURY

Appellant was charged with a violent act of terrorism resulting in the death of 6 people, injuries to scores of others, and hundreds of millions of dollars of property damage. At the trial, the prosecution Introduced into evidence documents and literature which essentially espoused in the name of Islam, what most people would label as fanatical religious propaganda against Zionism (7349), against Jews who kill Muslims (7355), using explosives in the name of "Allah", (7431-32), advocating Jihad (religious war) by combat and pistols (7455), gaining knowledge of explosives in the struggle against Zionists (7433), the necessity for a military organization against the hostile powers, the Christians, Zionists, and the United States who conspire against Islam (7455), and terrorism as a religious duty of Muslims (7470). These documents were admitted into evidence against appellant.

Knowing prior to jury selection that the prosecution planned to introduce these documents into evidence, and given the historical context of recent years of sensational media attention to Islamic fundamentalism going back to the Iran hostage crisis, and the current massive publicity attendant on this case before and during trial, appellant requested that the District Court, during its voir dire of the jury, question the potential jurors about their knowledge and feelings towards *113 Muslims, Arabs, and Islamic Fundamentalism to determine whether they had any bias against appellant, members of appellant's ethnic group, and, most significantly, against Islamic Fundamentalism, which would be exacerbated by introduction of the inflammatory literature. (384-87, 423-26, 434-37). For example, after a juror had stated during the voir dire that she had already concluded that the defendants were guilty but she was willing to suspend that judgment and listen to the evidence (346) she was asked only the barest, general questions concerning Muslims limited to (1) whether she had ever traveled to the Middle East; (2) whether she had any views which would prevent her from judging people of the Muslim faith; (3) whether she had any Muslim friends or business associates; (4) whether she had any business dealings with Muslims; and (5) whether she could be "be fair and impartial here" (348). Counsel for appellant, who along with the other defendants had submitted proposed written voir dire questions, specifically asked the Court to make a more detailed inquiry stating

I still think ethnicity is important in this case, ...I think it is much more than has a person traveled to the Middle East. We are talking about racial prejudice, and when you ask bias, it is too general. I think you have to be more specific because we have defendants here who are Palestinian, who are Egyptian.

349-50). Counsel later again made this same request stating that the Court's limited inquiry was not enough to determine whether a potential juror was biased and suggesting that the court ask, "Do you have an opinion about Islam?" and "Do you know what Islam is?" (385) Counsel for appellant later explained that the limited inquiry made by the Court concerning the juror's potential bias did not provide him with the basis *114 for exercising his preemptory challenges and that he had no basis for judging the potential juror's feelings and perceptions about fundamentalism or "jihad" (437). The Court refused to make such inquiry stating that the inflammatory literature would play no part in the trial, because "religion is not on trial" (386), and essentially limited the inquiry to only asking the jury panel whether they knew any Muslims, had ever traveled to the Middle East, and whether they would have any difficulty judging the defendants because they are Muslims. (The questions were not always phrased in the identical manner.) At the trial, the Court did in fact allow the prosecution to introduce the multitudes of exhibits which implicated Islamic teachings and equated them with terrorism. Thus, contrary to the Court's dismissal of the reality of the issue, Muslims and Islamic Fundamentalism were an integral part of the trial which should have required the District Court to make the bias inquiry of the potential jurors as requested by appellant.

The limited bias inquiry made by the Court during voir dire in this case can be contrasted with the much more extensive inquiry made of the potential jurors in the second trial involving, inter alia, allegations of the bombing of the World Trade Center, by Muslim defendants, the case of U.S. v. Rahman, Ind. No. 93 Cr. 181 (MBM). In the latter case, the Court submitted the much more probing, detailed questions requested by the defense in this case, such as:

Do you know anything about, or have any opinion about, the teachings or doctrines of Islam? If yes, please explain. Have you read about, visited, or formed impressions or opinions about the following countries? Afghanistan, Algeria, Arab Emirates, Bosnia and Herzegovina, Egypt, Iran, Iraq, Israel, Jordan, Kuwait, *115 Libya, Morocco, Pakistan, Palestine, Saudi Arabia, Serbia, Sudan, Syria, Tunisia, Yemen. If yes, please explain. Do you have any negative or positive feelings or opinions about people of Arab descent? If yes, please explain. Is there anything about a case where all the defendants are Muslims (which means the practice of Islam) that would make it hard for you to serve as a juror?

A defendant's right to trial by an impartial jury is granted by the Sixth Amendment to the United States Constitution. it has long been recognized that voir dire of the jury panel is the mechanism by which the judge can determine whether to remove a prospective juror who will not be impartial in a given case as well as the mechanism by which the defendant can determine how to exercise his or her peremptory challenges. Rosales-Lopez v. United States, 451 U.S. 182 (1981). While federal judges have substantial discretion in determining how to conduct the voir dire, there are constitutional requirements imposed with respect to questioning potential jurors about racial or ethnic bias. Where, as in this case, ethnic or racial issues are "inextricably bound up with the conduct of the trial" the Constitution requires the questioning of potential jurors on those issues. Rosales-Lopez v. United States, supra, at 189.

A somewhat analogous problem arose in the case of United States v. Frasch, 818 F.2d 631 (7th Cir., 1987). There the Seventh Circuit stated that in order to mitigate the prejudicial potential of highly offensive language which would be introduced against the defendant at trial, the trial court should first consider deleting it, and then should, "question the venire panel, using the actual language that the jury will later hear." Id. at 634.

In this Circuit, the " 'substantial indications that *116 racial or ethnic prejudice will likely affect the jurors' " in this case should have been enough to require the requested voir dire. United States v. Kyles, 40 F.2d 519, 524 (2d Cir., 1984). In United States v. Gillis, 942 F.2d 707, 709-710 (10th Cir., 1991) the Court, addressing the Sixth Amendment right to a trial by an impartial jury, held, as it would undoubtedly here,

A district judge abused that discretion if the scope of voir dire is so limited that it does not create any reasonable assurances that prejudice would be discovered if present. United States v. Hurley, 746 F.2d 725, 727 (11th Cir., 1984).

The Tenth Circuit Court held that the "catch all" question asked by the District Judge about whether panel members knew of any reason why their impartiality would be impaired was insufficient to ensure an unbiased jury. Likewise, the limited generalized questioning of the jury panel by the District Court herein, despite trial counsel's repeated requests for a more specific, probing inquiry, was insufficient to ensure defendant's right to a trial by an impartial jury as guaranteed by the Sixth Amendment.

In addition to the Sixth Amendment right to an impartial jury, the District Court's supervisory power over the federal trial mandated an appropriate bias inquiry of the potential jurors. in Kyles, supra, 524, this Court stated that, as in this case,

a reasonable possibility of racial or ethnic bias [sufficient to require an exercise of the supervisory power by granting a defendant's voir dire requests] exists when the defendant is "accused of a violent crime and where the defendant and the victim are members of different racial or ethnic groups."

This Court affirmed the District Court despite its failure to allow inquiry of the jury on the issue of racial bias because there was no physical or proprietary injury to anyone and thus *117 no interracial violence. Id. at 525. The Court noted that the Supreme Court decision in Rosales-Lopez,

sets violent, interracial crimes apart from others because they are more likely to stir racial prejudice in the jurors...

Id., at 525.

POINT IX

APPELLANT'S JOINDER AT A TRIAL WITH ONE CO-DEFENDANT WHOSE LUGGAGE CONTAINED HATE LITERATURE WHICH WAS INTRODUCED AGAINST APPELLANT AND WITH ANOTHER DEFENDANT WHO ARGUED THAT AN ASSOCIATE OF APPELLANT'S HAD MASTERMINDED THE PLOT TO BLOW UP THE WORLD TRADE CENTER DEPRIVED APPELLANT OF A FAIR TRIAL AND DUE PROCESS OF LAW

Hate literature and video tapes seized from co-defendant Ahmed Ajaj and containing references to a holy war waged by Muslims against Christians, Jews and the United States were erroneously admitted against appellant solely because he was tried jointly with Ajaj. Also because of the joinder, appellant's defenses of no conspiracy and no knowing association with bombers were prejudiced by co-defendant Salameh's argument that Ramzi Yousef, a man whom the prosecution characterized as a close associate of appellant, had masterminded the bombing.

Severance should have been granted under the Fifth and Sixth Amendment rights to a fair trial and due process of law and under FED.R.CRIM.P. 14 because the joint trial "prevent[ed] the jury from making a reliable judgment about guilt or innocence" of appellant apart from these inflammatory and antagonistic attributions. Zafiro v. United States, 506 U.S. 534, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993). The denial of severance was an abuse of discretion, United States v. Harwood, 998 F.2d 91, 95 (2d Cir., 1993), also because a *118 ground for reversal specifically referred to in Zafiro was present, evidence admissible against one but not all of the trial defendants. Zafiro, 113 S.Ct. at 938; United States v. Haynes 16 F.3d 29, 32 (2d Cir., 1994). The Court in Zafiro further cautioned that the risk of prejudice is heightened in complex cases, as here, when defendants, with, according to prosecution characterization of the evidence, "markedly different degrees of culpability," are tried together. Id. (citing, Kotteakos v. United States, 328 U.S. 750, 774-775, 66 S.Ct. 1239, 1252-1253, 90 L.Ed. 1557 (1946). Prejudice might be mitigated by curative instructions to the jury, Zafiro, supra; United States v. Harwood, supra, 998 F.2d at 96, but none were given in this case.

It is evident that the trial Court abused its discretion by denying a severance. There is no question that the hate literature and video tapes were inadmissible against appellant and would not have been received at a separate trial. [FN22] The items were recovered nearly six months before the explosion, from a co-defendant who was wholly unconnected to appellant. There was no evidence that appellant even knew Ajaj. in fact, Ajaj was detained by INS upon his arrival in the United States and did not formally enter the country until his release, which occurred after the explosion. Additionally, there was no evidence that appellant embraced the ideas or exhortations contained in the documents, indeed, there was no evidence that Ajaj did. Not only lacking probative value, the literature and video tapes were highly inflammatory and *119 excessively prejudicial. FED.R.EVID. 401, 403 (See Point VII).

FN22. Appellant independently challenges the admissability of the hate literature and video tapes on First Amendment, relevance, and prejudice grounds. See supra, Point VI.

In addition, this was not a simple case. See Zafiro, 113 S.Ct. at 938; United States v. Tutino, 883 F.2d 1125, 1132 (2d Cir., 1989); United States v. Potamitis, 739 F.2d 784, 790 (2d Cir., 1984). The government presented a mass of technical, expert, and disconnected circumstantial evidence, purportedly supporting a complex theory about the chemical composition of a bomb, its housing, and the link to the defendants, which rested on innocuous facts of association that lumped defendants together and which required tremendous scrutiny to fairly evaluate the existence of a conspiracy and the participation of its alleged members. Moreover, the "guilt by association" environment that surrounds conspiracy prosecutions, especially when Pinkerton liability is introduced, frustrated the jury's ability to assess the evidence as to each, and therefore elevated the potential for prejudice. It would defy logic to suggest that the hate literature and video tapes did not substantially prejudice appellant's right to have the evidence viewed independently against him.

Here, the prejudicial effect is greater than the one anticipated by the Supreme Court in Zafiro, because appellant was saddled with the erroneous application of the evidence to him. Thus the "spillover" was direct and unmitigated, and the jury had no idea that it was supposed to compartmentalize it depending on its admissibility as to each defendant. Tutino, 883 F.2d at 1130. In the instant case, the evidence was erroneously admitted against appellant and it was therefore impossible for him to overcome the ensuing prejudice.

Additionally, there was no curative charge to *120 diminish the harm. In fact, the Court's ruling exacerbated the prejudice because, instead of cautioning the jury to disregard the hate literature and video tapes as to appellant, they were permitted to hold it against him. As such, remedial instructions, frequently relied upon by appellate courts to sustain trial court rulings, were absent in this case. Zafiro 113 S.Ct. at 938-39; Harwood, 998 F.2d at 96; Tutino, 883 F.2d at 1130.

The prosecutorial efficacy of guilt by association by joint trial became overt and expressed when Salameh suddenly admitted in summation the existence of the conspiracy and claimed that his and appellant's associate, Yousef, had duped them into it. Although Salameh argued this only with respect to himself, the effect was to draw all of Yousef's associates into the plot, because they had also been with Yousef and Salameh on several occasions. The jury would find it difficult to accept that an entire group of people were duped about Yousef's plans. Aside from this argument by Salameh, there was no evidence that appellant knew anything or did anything under Yousef's direction.

The Court below and the prosecutor have both acknowledged that appellant and Salameh presented antagonistic defenses (See Statement of Facts, supra, Section IX). Antagonistic defenses are not per se reversible, Zafiro, supra, however, reversal is appropriate if the denial to sever, or in this case to grant a mistrial due to the lateness in the trial of the prejudice, "prevent[s] the jury from making a reliable judgment about guilt or innocence," a determination that turns on the facts of the given case. Id. at 938. Appellant *121 anticipated general prejudice and moved pre-trial for a severance, thereby preserving his right to a mistrial in the event his fears materialized. Here, the specific unanticipated antagonism of the Salameh summation surfaced at the close of the trial thereby precluding appellant from mitigating the prejudice, and a mistrial should have been granted. It was undoubtedly a shocking turn of events when Salameh's attorney gave up what he and his co-counsel had consistently maintained, that there had been no conspiracy.

In this case, appellant's defense was meticulously developed over a long period of time from bits and pieces of circumstantial evidence fought fact by fact. Without question, the length of the trial transformed the positions taken by the litigants into indelible impressions on the jury. Common sense dictated that a sudden disassociation with the established strategy implied a lack of confidence in the defense, an occurrence which would profoundly effect the jury.

POINT X

APPELLANT WAS DENIED COUNSEL OF CHOICE, EFFECTIVE ASSISTANCE OF COUNSEL, AND AN IMPARTIAL JUDGE AT SENTENCING, AND THE SENTENCE VIOLATED STATUTES, GUIDELINES AND THE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND AGAINST DOUBLE JEOPARDY

At proceedings on April 15, 1994, conducted without appellants and without permitting chosen counsel to speak, the trial Court disqualified counsel of choice. The Court refused to hear arguments that counsel had no real conflict of interest and that any speculative conflict would be knowingly and intelligently waived. On May 10, 1994, only two weeks prior to sentence, the Court assigned new counsel and refused new assigned counsel's request for a continuance to *122 permit counsel to obtain the 10,000 page trial record and to read and analyze it for the purposes of preparing for sentence and for investigating and preparing a new trial motion based on ineffective assistance of ??ial counsel and new evidence. The Court then proceeded to sentencing on May 24. It again denied continuances to new counsel, made factually inaccurate allegations against appellant, which new counsel was unprepared to meet, revealed personal animus against the appellants, and imposed a collective sentence against all the appellants that violated the statutes, guidelines, and Constitution.

A. Denial of Counsel of Choice

The trial Judge summoned counsel to Court on April 15, 1994, and without the presence of the appellants, and without permitting counsel to speak, summarily disqualified him on the grounds that he could not represent defendants who could possibly cooperate against his clients in a related case (Tr. April 15, 1994, at 3). The Court refused to hear or consider the fact that appellants had already eschewed such cooperation (Id at 4).

Appellants sought a writ of mandamus from this Court directing the trial Court to accept their counsel of choice. At oral argument on May 3, 1994, the panel of this Court, Pratt, J., Walker, J., and Leval, J., opined that perhaps the trial Judge had not completed his deliberations on the matter and that mandamus was premature because the Judge had adjourned the sentence from May 4 to May 24. [FN23] The panel also suggested *123 that the issue could more properly be raised on direct appeal. On the substance of the issue, in the course of the following colloquy with a Justice of this Court, the prosecutor represented that if the mandamus were denied he would urge the trial Court to hold a hearing pursuant to United States v. curcio, 694 F.2d 14 (2d Cir., 1982).

FN23. in fact, new counsel had not yet been assigned as of May 4, therefore the sentencing could not proceed. (See infra, section B).

Tape recording of oral argument, May 3, 1994, In Re Abouhalima, et. al, No. 94-3038.

*124 The mandamus was denied on May 3, and thereafter newly assigned counsel wrote to the trial Court, copy to the prosection, that, "Defendant has a Constitutional right to the lawyer of his choice, William Kunstler, and this Court should allow Mr. Kunstler to appear or hold a hearing." (Letter of Lawrence Stern to the Court, May 20, 1994, See Appellant's Appendix). The prosecution neither replied nor did what it had promised this Court during the mandamus argument. Instead, at the sentence proceedings on May 24, the prosecution argued , "The defendants have maintained through their ... insistence on certain counsel representing them, their dismissal of trial counsel, that they have rejected essentially the American system of justice in these proceedings." (Tr. sentence proceedings May 24, 1994, at 20). The Trial Court ruled,

Mr. Stern suggests that everybody has a right to counsel of his choice. That's not true and Mr. Stern knows it. A person has a right to counsel where the counsel is conflict free.

(Id at 15). on June 14, 1994, a month after the sentencing, the trial Court filed a written opinion on the issue because it believed that newly appointed counsel, by asking again that appellants be permitted to have the lawyers they wanted and by asking for a Curcio hearing, had not understood that the Court could summarily disqualify a lawyer who has a conflict so "pervasive and readily apparent" as the one chosen by appellants. United States v. Salameh, 856 F. Supp. 781 (1994).

In fact, there was no conflict. Appellants knew of the option of cooperation and rejected it. Counsel tried to tell that to the trial Court on April 15, but counsel was ordered to sit down and be silent. He told that to this Court during oral argument on the mandamus. Appellants told that to *125 the Court at sentencing (Tr. May 24, 1995 at 28, 47, 63).

The trial Court's outright disqualification of counsel on the simple ground that he represented multiple defendants in the same case is directly contrary to the requirement of United States v. Curcio, supra, that a hearing be held to explore the reality of any potential conflict and the knowledgeability of a defendant's waiver in such situations. Appellant was thus denied the Sixth Amendment right to counsel. Any burden to show that he would not have been sentenced or that he would not have received the sentence that he did would be "well-nigh 'insurmountable'," therefore the sentence should be vacated and the matter remanded. United States v. Curcio, supra, at 20, citing Armstrong v. McAlpin, 625 F.2d 433, 441 (2d Cir., 1980) (en bane), vacated on other grounds, 449 U.S. 1106 (1981).

B. Denial of Effective Assistance of Assigned Counsel

On April 15, after the trial Court disqualified counsel of choice, it ordered prior trial counsel to telephone chambers on April 25, to "tell me whether you are in or you are out. And if you are out, I have to arrange to get a CJA counsel for each of these people and appoint them. But I will do that at the appropriate time." (Tr. April 15, 1994 at 16). Thus, the Court did not even begin the process of attempting to find new counsel for appellant until after April 25, nine days before the scheduled May 4 sentence date. When that process was not completed by May 4, the Court adjourned the sentence date to May 24. New counsel for appellant Abouhalima was not officially assigned until May 10, two weeks before sentencing. (See CJA appointment voucher, Appellants' Appendix).

*126 Appellant was incarcerated at Lewisburg, Pennsylvania, a four hour drive from New York. Unmonitored attorney-client phone calls were not permitted. A visit could not extend past 3 P.M. New counsel could not get the trial record; trial counsel refused to give over the transcript or any other materials, except the Presentence Report. The trial transcript is 10,000 pages long and could not in any case be read in the time for sentence. New Counsel, over his objections and after denials by the Court of requests for continuances, had to appear at sentence effectively ignorant about the facts of the case and about his client whom he was able to arrange to see for only one 5 hour interview prior to sentencing at the Lewisburg Penitentiary. (See Letters of Lawrence Stern, Esq. to the Court, May 16 and May 20, 1994, Appellant's Appendix).

There was absolutely no reason why sentence could not be postponed to allow new counsel to read the record and make informed arguments relevant to sentence, as well as to investigate, assess, and present a motion for a new trial. [FN24] A continuance is required when new counsel is appointed shortly before the scheduled start of proceedings, particularly when the files on the case are not available to him. United States v. Millan-Colon, 834 F.Supp. 78 (S.D.N.Y., 1993). This Court holds that a sentence will be vacated where the trial Court has *127 failed to give sufficient time for sentence preparation. United States v. Palta, 880 F.2d 636 (2d Cir., 1989); See also United States v. Prescott, 920 F.2d 139 (2d Cir., 1990). Here, the Court also denied to defendants, who had Arabic translators throughout the trial, Arabic translations of the Presentence Report. A defendant is entitled to an effective opportunity to respond to the sentence position advanced by the prosecution, and to contest the accuracy of the Presentence Report, and the facts relied on by the trial Court. United States v. Alexander, 860 F.2d 508 (2d Cir., 1988); United States v. Helmsley, 941 F.2d 71 (2d Cir., 1991); United States v. Mescaine-Perez, 849 F.2d 53 (2d Cir., 1988); F.R. Crim. P.32. The right to contest the factual allegations of the Presentence Report will be strictly adhered to. Dunston v. United States, 878 F.2d 648 (2d Cir., 1989). Effective assistance of new counsel at sentencing means counsel who can effectively marshal available mitigating evidence and make arguments in mitigation, particularly where there is a claim that trial counsel was ineffective, as there was here. United States v. Daniels, 558 F.2d 122 (2d Cir., 1977). It is error to deny an adjournment to new counsel appointed at sentencing, particularly when the transcript of trial is not available. United States v. Sullivan, 694 F.2d 1348 (2d Cir., 1982).

FN24. The motion for a new trial that could have been made, had there been time, has now been made in this Court as a motion for remand. The merits of the motion, the detailed knowledge of the case, and the new evidence required to make it are obvious from the face of the motion. Should this Court remand for resentencing, it could include in the remand the right of appellant to make the motion in arrest of judgment.

The Court's reason for denying any continuance was that new counsel had asked for a date for sentencing in September, 1994, an adjournment of three to four months to learn from scratch about a massive six month trial of complex circumstantial evidence and about which appellant was claiming trial counsel had ineffectively represented him and failed to *128 adduce evidence on his behalf. The Court denied any continuance because the continuance counsel asked for was too long for the Court (Tr. May 24, 1994 at 9-10), but the requested length of the continuance was reasonable under the circumstances, and certainly an attorney's estimate of what he needs is not reason in itself to deny a continuance altogether.

The Court later gave two months to new counsel appointed for Ramzi Yousef, who was arrested in January, 1995, just to read the same transcript for which no time was accorded counsel in this case. (Proceedings, United States v. Salameh, et., al. (Ramzi Yousef), 93 Cr. 180 KTD, February 24, 1995).

Thus the Court denied effective assistance of counsel and failed in its obligation to take appropriate steps to ensure fairness and accuracy of the sentence process. United States v. Robin, 545 F.2d 775 (2d Cir., 1976). The result was a Presentence Report and a sentence based on factual errors and erroneous assumptions about the extent of appellant's guilt, if any, based on allegations about the evidence, none of which counsel could knowledgeably address at the time. See subsection C, infra. The illegalities in the sentence even to the extent they were not raised below, may be noticed by this Court on appeal as plain error. United States v. Soto, No. 94-1021, (2d Cir., February 10, 1995).

C. The Sentence in Violation of Double Jeopardy, Due Process, Statute and Guidelines

The Court imposed the same sentence on all four appellants, based on the life expectancies of the victims. The Court expressly ignored the Presentence Report and any individual characteristics of the appellants and the quantum *129 and nature of the evidence against each of them. As such the sentence violated the statutory right to "individualized sentencing". United States v. Amato, 15 F.3d 230 (2d Cir., 1994); 18 U.S.C. § 3553(a). It violated the requirement that the Presentence Report and any factual errors therein be taken into account, United States v. Romano, 825 F.2d 725 (2d Cir., 1987); F.R. Crime P.32. It denied appellant the right to have the Presentence Report corrected, notwithstanding the alleged harmlessness of any errors. United States v. Arefi, 847 F.2d 1003 (2d Cir., 1988).

The factual errors in the Report were numerous and contributed to the Report's exaggerated view of the evidence of appellant's role, even assuming his guilt based on the verdict. The Court shared this mistakenly distorted view of the evidence, but counsel, who had not been given time to read the record, could not correct it.

The Report claimed that appellant had been convicted of knowingly and intentionally causing death (p.28 ¶116). There was no such evidence. There was not even such a charge in the indictment. The Court instructed the jury that only intent to damage property was charged (9156-57).

The Report claimed that appellant bought some gunpowder two months before the explosion (p.10, ¶32) but it omitted the facts that it was not the same gunpowder found at the storage locker and that the gunpowder found there was mixed with another chemical (3047-50, 6912, 6962-63). The Report implied that because no guns or ammo were found in appellant's apartment, the purchase of the gunpowder must have been to bomb the World Trade Center. Aside from the inferential chasm *130 between the fact of this purchase and the conclusion, the gunshop proprietor testified that appellant first asked to purchase ammunition at the gunshop and only bought the gunpowder for reloading ammunition after hearing that the price of the ammunition itself was too high (3050-58).

The Report claimed that appellant helped rent the apartment at 40 Pamrapo in Jersey City, which the prosecution claimed was the bomb factory (p.10, ¶33). In fact the testimony was that the help was given by appellant's brother Mohammad and that the apartment he offered to help find was in Newark, not Jersey City (2861, 5606-06, 5542, 8968).

The Report claimed that appellant was seen at 40 Pamrapo nightly (p.10, ¶34). In fact neither of the two witnesses who described the people who visited that address testified to seeing appellant there, and one of the two testified that appellant was not the person with the "weird" red hair who he saw there. Furthermore the witness testified that the red haired man was there several times a week, not nightly (3343-54, 3378-79, 3386-92).

The Report claimed that appellant mixed chemicals at 40 Pamrapo (p.10, ¶34). There was no such evidence. Infinitesimal sulphur ions on one shoe among all the clothing seized from his apartment, required a conclusory leap without evidence to get to his mixing chemicals at 40 Pamrapo. This is particularly so given the chemist's own testimony that sulphur ions are not the equivalent of sulfuric acid, and that such ions could be deposited on a shoe in innocuous ways (7016-17, 7182-83). The Report claimed that magnesium sulphate was also found on the shoe and that magnesium is a chemical which can be *131 used in bombs (p.10, ¶34). But the testimony at trial was that magnesium sulfate is common Epsom Salt and is used in the dye and tanning of the shoe itself and that it contains sulphur which could have accounted for the sulphur ions themselves (7160-67, 7294).

That appellant purchased a refrigerator years before the explosion and that it was found with Yousef's prints in an apartment unrelated to appellant two months after the explosion evidences nothing but a possible association between Yousef and appellant (p.11, ¶37; 5583-94, 7733).

Appellant's telephone credit card was used by others to make the phone calls which the prosecution claims were incriminating only because they were made to numbers registered to chemical companies (p.11, ¶39). That the calls were unauthorized is evidenced by appellant's attempt to cancel the card on February 8, 1993, weeks before the explosion (6545-51), but the report omitted this fact (p.11, ¶39). Furthermore, when appellant called again on February 26, he did not ask that the calls be "erased," as the Report would have it (p.12, ¶ 47). Rather he called again to cancel the charges, because on that date he received the bill and was surprised to learn that his prior February 8 order of cancellation had not been effective (6545-51). The Report omitted all this.

Contrary to the Report (p.13, ¶48), appellant had not been asked to comment on the bombing of the World Trade Center when he uttered the phrases attributed to him on the airplane flight from Cairo to the United States. Rather he was led to repeat the name of the Street, Pamrapo, when the interrogator first asked him about it without a context. He was *132 additionally, but unsuccessfully, led to repeat the name Rashed, an alias of Yousef, after he asked about a different person named Rashid (5957-82). Furthermore had newly assigned counsel been given a reasonable continuance, he could have presented the evidence presented on the motion for remand filed in this Court, that appellant's mutterings were the result of the torture he had undergone immediately prior to being placed on the airplane (See the motion).

These and the other errors in the interpretation of the scant circumstantial evidence against appellant (as set forth more fully in the Statement of Facts, section I, and Argument, Point I, supra) should have given the Court pause in sentencing appellant to life without parole. The Court, however, refused even to consider arguments that if guilt must be assumed for purpose of sentencing the evidence at best proved appellant's association with others and knowledge of some kind of a plan involving explosives. The Court refused to consider that there was no evidence in this case that appellant had more than a tangential role at most, that there was not a scintilla of evidence of knowledge that the plan was to blow up buildings, including the World Trade Center, no evidence of more than de mimimus participation, and no evidence of intention to join a conspiracy of the scope charged in the indictment (Sentence proceedings, May 24, 1994, at 52) [FN25] United States v. Studley, No. 1228 (2d Cir., February 13, 1995) (Court at sentencing must consider scope of each conspirator's *133 agreement and what was foreseeable within that agreement).

FN25. The Court retorted, "Downward departure? What downward departure would you have in a case involving where there are six dead people?"

The Court relied on its own assumptions of fact nowhere supported in the record, that appellants intended to topple one tower of the World Trade Center into another, that victims were permanently damaged by gas, and that more would have been, except for vaporization (Id, at 36-37). The Court was apparently blinded by personal feelings of animosity against appellants, overtly expressed in the epithets "cowardly hypocrite," "sneak and coward" and "lowest of the low" which it used in justifying its sentence and disregarding appellants' attempts at mitigation. The appearance of prejudice which manifests in a court's imposition of sentence is reason to vacate it as well as to vacate the underlying conviction. United States v. Edwardo-Franco, 885 F.2d 1002 (2d Cir., 1989); Offutt v. United States, 348 U.S. 11, 14 (1954). [FN26] Reliance on errors of fact at sentencing also requires vacatur. United States v. Fatico, 579 F.2d 707 (2d Cir., 1978).

FN26. This Court should direct that upon remand the case should be assigned to a different Judge. United States v. Diaz, 797 F.2d 99 (2d Cir., 1986); United States v. Torkington, 874 F.2d 1441 (11th Cir., 1989); United States v. Goldfaden, 959 F.2d 1324 (5th Cir., 1992).

The Court also sentenced appellant based on erroneous interpretations of the Guidelines and in derogation of the Constitutional rights to due process of law and against double jeopardy. The Guidelines for intentional and premeditated murder (2A1.1 and 2K1.4) were erroneously applied because three was no evidence of intent to kill. Indeed, intent to kill was not an element of the crimes charged. The Court instructed the jury that only intent to damage buildings was necessary to the *134 prosecution's requisite proof (9156-57). Thus, the jury could well have convicted on intent to bomb uninhabited buildings, particularly since there was no evidence that appellant knew of or planned to bomb any particular structure, let alone an inhabited one. The Court refused to consider the inapplicability of the murder guideline or even to acknowledge its power under that Guideline to depart downward based on the absence of evidence of intent and based on the absence of evidence that appellant played more than a tangential role in any plot. United States v. Correa-Vargas, 860 F.2d 35 (2d Cir., 1988); United States v. Monk, 15 F.3d 25 (2d Cir., 1994); United States v. Concepcion, 983 F.2d 369, 385-89 (2d Cir., 1992); U.S.S.G. § 2A1.1 and Application Note 1. For the same reasons, the Court should have considered and imposed a sentence with a downward adjustment and an additional downward departure for appellant's minimal role. U.S.S.G. § 3B1.2; United States v. Restrepo, 936 F.2d 661, 667-668 (2d Cir., 1991).

The Court also erroneously added two consecutive 30 year sentences for Counts 9 and 10, which charged violations of 18 U.S.C. § 924(c) for use of an explosive device in the commission of two of the underlying crimes of conviction (Counts 1 and 8), the elements of which already included use of an explosive device. Thus, with respect to each of the two underlying crimes, the element of use of an explosive device was counted once in the setting of the offense level and counted again in the Court's imposition of an additional ??0 years based on the same element. Furthermore, the 30 year sentences were not only added to each of the offenses they *135 were pyramided on top of each other, resulting in treble counting of the same element and a violation of the Guidelines, the statutory sentences for the crimes, and the Constitutional right against double jeopardy. Busic v. United States, 446 U.S. 398 (1980); United States v. Lindsay, 985 F.2d 666 (2d Cir., 1993).

The upward adjustment in offense level for obstruction of justice (U.S.S.G. § 3C1.1) based on appellant's alleged flight after the explosion was erroneous. Mere flight to avoid arrest does not constitute obstruction of justice. United States v. Stroud, 893 F.2d 504 (2d Cir., 1990); United States v. Alpert, 28 F.3d 1104 (11th Cir., 1994); United States v. Polland, 994 F.2d 1262 (7th Cir., 1993); United States v. Lamere, 980 F.2d 506 (8th Cir., 1992)

The Court's imposition of $250,000 in fines and $250,000,000 in restitution were improper. Appellant is indigent. He had pro bono counsel at trial, and the Court appointed counsel for him at sentencing because of his indigence. The Presentence Report reported that his wife and four children were receiving welfare. Fines should be waived when a defendant is indigent. United States v. Wong, 40 F.3d 1347 (2d Cir., 1994). The fact that the defendant is represented by assigned counsel establishes indigence. United States v. Stevens, 985 F.2d 1175 (2d Cir., 1993). Where the Presentence Report provides facts of indigence, a fine will be reversed. United States v. George Rivera, 971 F.2d 876 (2d Cir., 1992); United States v. Enrigue Rivera, 22 F.3d 430 (2d Cir., 1994). At the very least, a defendant must be given the opportunity to show his indigence, and any fine imposed without *136 that opportunity will be reversed. United tates v. Stevens, supra. Here, the Presentence Report states that at the insistence of the Bureau of Prisons appellant was bound throughout the Presentence interview and therefore could not sign the requisite authorizations for bank records, tax returns, and the like, therefore he was precluded from any further demonstration of his indigence, and the fines must be vacated.

The restitution order of $250,000,000 fails, because there is no indication in the record that the Court considered all the factors required by 18 U.S.C. § 3664, including appellant's inability to pay and the needs of his wife and children. United States v. Gelb, 944 F.2d 52 (2d Cir., 1991). A restitution order, as the one here, which merely imposes the amount of loss to the victims without consideration of all the other factors will be reversed. United States v. Tortora, 994 F.2d 79 (2d Cir., 1993). Furthermore, this indigent defendant, who, if the conviction is affirmed, will remain imprisoned for at least the five years mandated by statute for payment of the restitution, will not be able to comply in the statutory time period. The restitution order must be vacated under those circumstances. United States v. Porter, 41 F.3d 68 (2d Cir., 1994); United States v. Bailey, 975 F.2d 1028 (4th Cir., 1992); United States v. Sleight, 808 F.2d 1012 (3rd Cir., 1987). The Court's attempt to justify the restitution order on the possibility that appellant might write a book about the case does not sustain the order. Such orders based on mere fortuity and speculation must be reversed. United States v. Wong, supra,; United States v. Seale, 20 F.3d 3279 (3rd Cir., *137 1994). Finally, the restitution order must fail, because the victims were undoubtedly compensated by insurance 18 U.S.C. § 3579(E)(1).

POINT XI

PURSUANT TO RULE 28 (i) OF THE FEDERAL RULES OF APPELLATE PROCEDURE, APPELLANT HEREBY ADOPTS BY REFERENCE AND INCORPORATES HEREIN ALL POINTS AND ARGUMENTS OF CO-APPELLANTS TO THE EXTENT THEY ARE APPLICABLE TO APPELLANT, AND NOT INCONSISTENT HEREWITH.

CONCLUSION

FOR THE ABOVE STATED REASONS, THE JUDGEMENT OF CONVICTION SHOULD BE REVERSED AND THE INDICTMENT DISMISSED, OR A NEW TRIAL ORDERED BEFORE A DIFFERENT JUDGE OF THE DISTRICT COURT, OR, THE CASE SHOULD BE REMANDED FOR RESENTENCING WITH LEAVE TO MOVE FOR ARREST OF JUDGMENT BEFORE A DIFFERENT JUDGE OF THE DISTRICT COURT.

Appendix not available.

UNITED STATES OF AMERICA, Appellee, v. Mohammed A SALAMEH, Nidal Ayyad, Mahmoud Abouhalima, also known as Mahmoud Abu Halima, Ahmad Mohammad Ajaj, also known as Khurram Kham, Defendants-Appellants, Ramzi Ahmed Yousef, Bilal Alkaisi, also known as Bilal Elgisi, Aboul Rahman Yasin, also known as Aboud, Defendants.