1994 WL 16181177 (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 SALAMEH, Nidal Ayyad, Mahmoud Abouhalima, also known as Mahmoud Abu Halima, Ahmad Mohammad Ajaj, also known as Khurram Kham, Defendants-Appellants. Ramzi Ahmed Yousff Bilal Alkaisi, also known as Bilal Elgisi, Abdul Rahman Yasin. also known as Aboud, Defendants.

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

1994.

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

Brief for Appellant Nidal Ayyad

Rothman Schneider Soloway & Stern, P.C., Attorneys for Defendants-Appellants, 70 Lafayette Street, Suite 700, New York, New York 10013, (212) 571-5500.

*I TABLE OF CONTENTS

TABLE OF AUTHORITIES ... III

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

STATEMENT OF ISSUES PRESENTED ... 2

STATEMENT OF FACTS ... 3

OVERVIEW ... 3

I. THE VICTIM WITNESSES ... 6

II. EVIDENCE COLLECTION WITNESSES ... 7

III. THE EXPERT TESTIMONY ... 8

IV. SCIENTIFIC EVIDENCE OFFERED AGAINST APPELLANT ... 12

1. THE TELEPHONE EVIDENCE ... 12

2. THE SEARCH EVIDENCE ... 13

3. CUSTODIAL STATEMENT ... 13

V. THE ALLIED SIGNAL COMPANY WITNESSES ... 14

VI. OTHER CHEMICAL COMPANY WITNESSES ... 15

VII. VEHICLE RENTAL WITNESSES ... 16

VIII. THE RYDER TRUCK RENTAL WITNESS ... 16

IX. DEFENSE EFFORTS TO OBTAIN EXPERTS ... 17

X. INFLAMMATORY MATERIAL SEIZED FROM APPELLANT AJAJ'S LUGGAGE ... 20

ARGUMENT

POINT I

Whether it was error to employ FRE 801 (d)(2)(e) (declarations of co-conspirators) to admit at trial, against all co-defendants, books, videotapes and other literary forms of expression found in the possession of and seized from one co-defendant where there was no evidence the non-possessory co-defendants ever saw or adopted the material and the *II material failed to constitute "statements" under fre 801 (d)(2)(e) ... 21

POINT II

Appellant's trial counsel afforded ineffective representation as evidenced by his improperly prepared pre-trial motions, pointless cross-examination buttressing the government's case, failure to procure expert analysis to support a cogent defense theory and to counter the government's scientific and technical experts ... 30

POINT III

Whether the district court unreasonably interfered with appellant's trial counsel's efforts to secure expert testimony and consultation concerning novel defense theories and dna evidence ... 57

POINT IV

The district court should have sanctioned the government's failure to timely produce scientific reports and analysis pertaining to DNA evidence where the defense requested the reports pursuant to F.R.Cr.p. 16(a)(1)(d) ... 63

POINT V

Whether appellant was denied his counsel of choice and effective assistance of counsel at sentence and whether the district court imposed an improper sentence ... 68

POINT VI

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 ... 72

Conclusion ... 73

*III TABLE OF AUTHORITIES

Adams v. U.S. ex Rel. McCann, 317 U.S. 269 (1942) ... 67

Anders v. California, 386 U.S. 738 (1967) ... 52

Avery v. Alabama, 308 U.S. 444, 446 (1940) ... 53

Bourjaily v. United States, 483 U.S. 171 ... 25

Evits v. Lucy, 468 U.S. 387 (1985) ... 52

Jones v. Barnes, 463 U.S. 745 (1983) ... 52

Kimmelman v. Morrison, 477 U.S. 365, 384 (1986) ... 55

Maddox v. Lord, 818 F.2d 1058, 1061 (2nd Cir. 1987) ... 54

McMann v. Richardson 387 U.S. 759, 771 n. 14 (1970) ... 53

Strickland v. Washington, 466 U.S. 668 (1984) ... 53

United States v. Christian, 786 F.2d 203, 212 (6th Cir. 1986) ... 26

United States v. Curcio, 694 F.2d 14 (2nd Cir. 1982) ... 71

United States v. Daniel, 558 F.2d 122 (2nd Cir. 1977) ... 70

United States v. Dioguadi, 428 F.2d 1033, 1037-38 (2nd Cir. 1978) cert. denied. 400 U.S. 825 (1970) ... 66

United States v. Durant, 545 F.2d 823, 827 (2nd Cir. 1978) ... 59

United States v. Euceda-Hernandez, 768 f.2d 1307, 1312 (11th Cir. 1985) ... 64

United States v. Eubanks, 591 F.2d 513, 518-521 (9th Cir. 1979) ... 26

United States v. Evans & Associates Costr., Co., 839 F.2d 656, 660 (10th Cir. 1988) ... 64

*IVUnited States v. Fernandez, 780 F.2d 1573, 1576 (11th Cir. 1986) ... 64

United States v. Finkelstein, 526 F.2d 517 (2nd Cir. 1975) ... 34

United States v. Garcia, 893 F.2d 188 (2nd cir. 1990) ... 38

United States v. Gomez, 810 F.2d 947, 953 (10th Cir. 1987), cert. denied. (1988) ... 27

United States v. Heinerman, 801 F.2d 86, 95 (2nd Cir. 1986) ... 27

United States v. Herreo, 893 F.2d 1512, 1528 (7th Cir. 1990) ... 27

United States v. Kelley, 420 F.2d 26, 27 (2nd Cir. 1969) ... 64

United States v. Mangan, 575 F.2d 32, 47 (2nd Cir. 1978) ... 66

United States v. Maldanado-Riviera, 922 F.2d 934, (2nd Cir. 1990), cert. denied 501 U.S. 1211 (1991) ... 25

United States v. Matos, 905 F.2d 33, 42 (2nd Cir. 1990) ... 53

United States v. Mayberry, 896 F.2d 1117, 1121 (8th Cir. 1990) ... 28

United States v. Moody, 778 F.2d 1380, 1382-1383 ... 26

United States v. Nixon, 418 U.S. 683, 701 (1974) ... 26

United States v. Oliver, 626 F.2d 254, 258 (2nd Cir. 1980) ... 58

United States v. Orena, 32 F.3d 704 (2nd Cir. 1994) ... 25

United States v. Palta, 880 F.2d 636 (2nd Cir. 1989) ... 69

United States v. Prescott, 920 F.2d 139 (2nd Cir. 1990) ... 69

United States v. Paone, 782 F.2d 386, 391 (2d Cir. 1986) ... 27

*VUnited States v. Patterson, 724 F.2d 1128, 1130 (5th Cir. 1984)(per curiam) ... 59

United States v. Patton, 594 F.2d 444, 447 (5th Cir. 1979) ... 28

United States v. George Rivera, 971 F.2d 876 (2nd Cir. 1992) ... 70

United States v. Roldan-Zapata, 916 F.2d 795, 803-804 (2nd Cir. 1990) ... 27

United States v. Sanchez, 912 F.2d 18, 21 (2nd Cir. 1990) ... 58

United States v. Simmons, 923 F.2d 934, 945 ... 27

United States v. Smith, 987 F.2d 888, 891 (2nd Cir. 1993) ... 59

United States v. Sulivan, 694 F. 1348 (2nd Cir. 1982) ... 69

United States v. Theriault, 440 F.2d 713, 715 (5th Cir. 1971) cert. denied. 411 U.S. 984 (1973 ... 58

United States v. Tortora, 94 F.2d 79 (2nd Cir. 1993) ... 70

United States v. Wicker, 848 F.2d 1059, 1060 (10th Cir. 1988) ... 64

United States v. Yarbrough, 852 F.2d 1522, 1535-1536 (9th Cir. 1988), cert. denied. 488 U.S. 866 ... 27

Wells v. Vaughn, 112 S.Ct. 3038 (1992) ... 53

Rules

F.R.Crim. P. 16 (a)(1)(D)

F.R.Crim. P. 16(d)(2)

F. R. Evid. 801(d)(2)(E)

Statutes

Criminal Justice A of 1964

18 U.S.C. Sec. 3006A(e)(1) (1988)

Note: Table of Authorities page numbers missing in original document

*1 STATEMENT PURSUANT TO RULE 28(a)(3)

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, Ahmed Ajaj and Mahmoud Aboulahima, after trial by jury, of the crimes of conspiracy to damage buildings by use of an explosive device (18 U.S.C. Sec. 371), explosive destruction of property (18 U.S.C. Sec. 844i), explosive destruction of government property (18 U.S.C. Sec. 844F.), interstate transportation of explosives (18 U.S.C. Secs. 33 & 34), assault upon a federal officer (18 U.S.C. Sec 111), and using a destructive device during a crime of violence (18 U.S.C. Sec. 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 for $250,000, and restitution of $250,000. Appellant is presently incarcerated pursuant to the sentence.

Timely notice of appeal was filed, and this Court assigned Jeremy Schneider counsel on appeal.

*2 ISSUES PRESENTED

1. Whether it was error to employ FRE 801 (d)(2)(e) (declarations of co-conspirators) to admit at trial, against all co-defendants, books videotapes and other literary forms of expression found in the possession of and seized from one co-defendant where there was no evidence the non-possessory co- defendants ever saw or adopted the material and the material failed to constitute "statements" under fre 801 (d)(2)(e).

2. Appellant's trial counsel afforded ineffective representation as evidenced by his improperly prepared pre-trial motions, pointless cross-examination buttressing the government's case, failure to procure expert analysis to support a cogent defense theory and to counter the government's scientific and technical experts.

3. Whether the district court unreasonably interfered with appellant's trial counsel's efforts to secure expert testimony and consultation concerning novel defense theories and dna evidence.

4. The district court should have sanctioned the government's failure to timely produce scientific reports and analysis pertaining to dna evidence where the defense requested the reports pursuant to f.r.cr.p. 16(a)(1)(d).

5. Whether appellant was denied his counsel of choice and effective assistance of counsel at sentence and whether the district court imposed an improper sentence.

6. Pursuant to rule 28(i)of the federal rules of appellate procedure, appellant hereby adopts by reference and *3 incorporates herein all points and arguments of co-appellants to the extent they are applicable to appellant and not inconsistent herewith.

STATEMENT OF FACTS

OVERVIEW

The government charged appellant, Nidal Ayyad along with three apprehended co-defendants and several other unapprehended defendants in an eleven count indictment. The indictment charged them with the violations of 18 U.S.C. 371, 844(i), 844(f), 844(d), 33, 1952 and 924(c) The indictment specifically charged appellant in Counts 1 through 6 and 8 through 10 for his alleged participation in a conspiracy to destroy buildings with the use of explosives and the evidence bore out the destruction to the World Trade Center "[WTC"] through the use of an explosive device. This device was essentially a home made bomb, constructed in New Jersey, out of locally obtained chemicals. Upon its completion, the conspirators transported the device to the WTC in a rented Ryder econoline van. As part of the conspiracy, the conspirators allegedly stored the bomb making chemicals, components and gasses used to construct the device in a rented Jersey City, New Jersey storage facility called Space Station Storage Facility.

On Feb. 26, 1993, the bomb laden Ryder truck was parked in the WTC's B-2 parking area. Apparently, a timing device detonated the bomb causing a massive explosion resulting in *4 approximately $550,000,000 in damage to the WTC complex. The explosion killed six people and injured many others.

A widespread investigation immediately ensued marshalling the resources of the Federal Bureau of investigation ("FBI"), Alcohol Tobacco and Firearms Administration ("ATF") and numerous other government agencies. The investigation led the FBI to the Ryder Truck Co. - a commercial vehicle rental agency. Federal agents arrested the first conspirator, Mr. Salameh, in March of 1993 at the Ryder agency office after he returned to obtain a refund of the unused portion of his rental fee. Mr. Salameh had earlier reported the vehicle stolen.

Agents searched Mr. Salameh's home and discovered appellant's business cards and records of numerous calls between Mr. Salameh and the appellant. Further investigation revealed a car rented by appellant listing Mr. Salameh as a second driver. The rental documents revealed appellant's business telephone number located at Allied Signal Inc., a New Jersey Chemical Co., where appellant worked as an engineer. Telephone records revealed calls from the storage facility pay phone to appellant's office. A search of the storage facility revealed a large amount of urea, nitric acid containers and various other chemicals. Shortly thereafter, the FBI obtained search and arrest warrants for the appellant's home and office. FBI agents conducted an extensive search of both locations. The government introduced a few items seized pursuant to the searches in its direct case as proof of appellant's participation in the *5 conspiracy. The government also introduced numerous telephone records evidencing telephone calls they allege appellant made to several chemical companies which sold the types of chemicals used in the bomb's construction and calls allegedly made to the site where the government argued the bomb was built, 40 Pamrapo - a street in Jersey City, New Jersey nearby the storage facility.

At trial, the government contended appellant's basic role was to procure chemicals for the bomb's construction. The government also accused him of sending a letter to the New York Times claiming responsibility and called the Daily News and left a verbal message also claiming responsibility. Witnesses identified appellant's voice as that contained on a call to the Daily News.

Over the course of a three month trial, the government introduced over 200 witnesses and 1000 exhibits. The jury was anonymous over the objection of the defense. The trial, as well as the pre-trial proceedings received extensive media coverage.

For all practical purposes, the trial was divided into three parts. First, the government offered descriptions of the WTC and the damage and injuries wrought by the explosion; second, each defendants' connection to each other and the conspiracy; finally, forensics expert testimony and testimony that the chemicals obtained by the conspirators were the same type of chemicals used in the explosion.

Additional expert testimony evidence linked appellant to *6 the conspiracy. Specifically, DNA test results connected the appellant to a letter sent to the New York Times claiming responsibility for the explosion. Further, a computer disk retrieval expert testified she reviewed appellant's computer disks and retrieved what appeared to be a draft of the letter sent to the New York Times. An FBI expert testified that paint recovered from the blast scene matched paint found on hydrogen gas tanks obtained by appellant.

I. THE VICTIM WITNESSES

Charles J. Maikish, the WTC's director, described the complex and the building's design specifications. Tr. 97-121. He testified that the B-2 level was used for parking and there were no appreciable natural gas feeds into the WTC. Tr. 114, 124. The government then introduced testimony from a series of witnesses who, for one reason or another, were present at the WTC at the time of the explosion or shortly thereafter as part of the rescue operation. They recounted tales of destruction, horror and heroism which included descriptions of the massive property damage to both the WTC and property contained therein. These witnesses related stories of the injuries, deaths, and several hair-raising rescues of numerous occupants of the WTC on the day of the explosion.

Samples of such testimony included a witness testifying to the loss of an eye, being trapped in an elevator with children and efforts to escape elevators by punching holes in walls. *7 This lengthy testimony had no bearing on the appellants' culpability. It was followed by testimony concerning the people killed in the explosion. This presentation included testimony and photographs of the victims. Tr. 517, 534. They were extremely graphic pictures depicting bodies recovered at the WTC and temporarily placed in a makeshift, on site morgue. Tr. 564. One picture was a photograph of an obviously, pregnant dead woman. Tr. 564. This image actually brought one juror to tears. Tr. 593.

The blast also destroyed automobiles belonging to the United States Secret Service. In total, the blast destroyed twenty six cars with a valuation of $350,000. Tr. 576. Further testimony indicated the cars were visibly United States Government property as they were parked next to a US Government Parking Sign. At one point, the district court expressed frustration at the government's having called such an extensive number of so called "victim" witnesses. Tr. 265.

II. EVIDENCE COLLECTION WITNESSES

The government called a series of law enforcement officers who participated in the on site collection and evidence analysis. Numerous agents from the FBI, ATF and the New York City Police Department worked together to collect and analyze pieces of evidence generated by the explosion. During this investigative process, agents recovered a piece of metal imprinted witn a VIN number traceable to a van owned by the *8 Ryder Corporation. This assisted agents in identifying the vehicle that contained the bomb. By tracking the VIN number, agents traced the vehicle as having been rented from Ryder Truck by Mr. Salameh.

In conducting the rest of the collection process, agents brought a Ryder van of similar type and model to the site. As agents collected pieces of metal and van parts, they compared them to those of the Ryder model. This presumably allowed a positive identification of the various parts. In addition to extensive testimony concerning the van's recovered parts, agents testified to chemical swabbings collected to determine the bomb's structural components.

III. THE EXPERT TESTIMONY

The government offered substantial expert testimony ranging from chemical analysis to DNA identification Testimony. Tr. 635.

a) Jacqueline Lee, the New York City Medical examiner, offered graphic testimony concerning the wounds suffered by the deceased and the ultimate cause of their death.

b) Leslie Robertson, a structural engineer, described the building's structural specifications. Among other details, he testified it was designed to last 200 years and literally withstand the impact of a Boeing 707 aircraft anywhere in the building. Tr. 666. He described the post-blast damage including very dangerous structural damage caused by the blast it having left 90 feet of unsupported columns without lateral support. He *9 further stated on direct, the building did not contain an internal system that could have caused this explosion. Tr. 685.

c) Msnishi Agarwal, a chemist, testified that he and Ronald Alongis of the NYPD conducted fingerprint analysis of a WTC parking lot stub and determined it correlated with Mr. Salameh's prints. Tr. 3539-40. Technicians completed the fingerprint analysis after trial commenced. Tr. 3546.

d) Carol Ann Edelson, a fingerprint expert, testified to the recovery of fingerprints at various locations. Seven of those prints belonged to appellant and were recovered from his own National Westminster Bank Passbooks. Tr. 7731. She stated appellant's prints were not on the New York Times letter. Appellant's prints did not appear on any other item. Tr. 7785

e) An FBI lab expert testified that paint samples recovered from the blast scene were identical to paint on a hydrogen gas cylinder. The government offered evidence suggesting appellant had ordered the gas from a local welding company.

f) Elizabeth Louise James, a computer expert, testified she recovered a file from a computer disk found in appellant's office. The recovered file contained the facsimile of the letter mailed to the New York Times. She offered no testimony about when the file was entered or erased on the disk. After the blast, numerous individuals and organizations unrelated to the appellants falsely claimed responsibility for the blast.

g) A New Jersey State Police explosives expert testified *10 that the chemicals stored at the Space Station Storage facility and subsequently detonated by this witness and his staff were so dangerous they had to be detonated when recovered as opposed to preserved.

h) Steven Burmeister, a forensic chemist with an expertise in explosives, described the explosion's characteristics and how ammonium nitrate, present at the scene could have been the cause of this type of explosion. Tr. 6905. He further advised that urea nitrate is a very rare explosive and does not naturally exist absent chemical engineering. Ultimately, he stated he could not draw a conclusion as to what precise type of explosive was used because of the presence of many contaminants at the blast cite.

i) David Williams, an explosives expert, gave extensive testimony concerning explosives, including nitroglycerine and the use of litmus paper to test dynamite's acidity. Tr. 78897895. He also explained how to construct a bomb using urea and some of the ingredients supposedly ordered by the defendants and recovered from the Storage facility. Tr. 7893. He also introduced a list of all the chemicals recovered from the storage facility and a list of chemicals ordered by appellant. 7904-7912, 7938-7942. He gave highly detailed testimony concerning how the chemicals on the list could construct the bomb. He explained how fuses work and the formula for making lead azize. 7920-7929.

He demonstrated his post blast investigatory techniques and *11 accompanied the testimony with a video that depicted a van explode with a bomb aboard. Tr. 7949-7951. He testified to the type of damage a bomb inflicts on a vehicle during a "car bombing". Tr. 7951-7959. He offered highly technical details concerning his conclusions. He estimated the explosion's velocity as dictated by the speed of the shock wave. These calculations lead him to the conclusion the bomb was fertilizer based. Tr. 7973. He explained how he ruled out other possible causes for the explosion. Given the damage, he estimated the amount of nitrate needed to cause this level of extensive damage and from this fact concluded a van and not an automobile was necessary to carry out this plan. Tr. 7977. He concluded a yellow Ryder truck contained the bomb. Tr. 7998-8000.

He described how the blast tore certain pieces of metal from the truck. He also described how he determined the blast's path through the direction and placement of the recovered yellow paint samples. He detailed the effects of the explosion through the use of an actual model of the WTC and photograph books distributed to the jury. Tr. 8008-09.

He described the blast damage through various pieces of the truck's engine which had been recovered at the blast cite. Finally, he concluded hydrogen tanks aggravated the explosive force and precisely where the explosives were located - namely inside the van's center. Tr. 8024-8039.

j) Lawrence A. Presly, an FBI unit chief, testified extensively concerning DNA evidence. He stated the agency tested *12 appellant's known saliva against saliva recovered from a sealed envelope mailed to the New York Times. Tr. 5212. The envelope contained a letter claiming responsibility for the blast. He determined the two samples matched and that appellant contributed the envelope sample. Tr. 5215-16. The defense objected to the testimony's admission on the grounds the 3500 material provided during trial was actually Rule 16 material. Counsel also argued on FRE 403 grounds that the samples failed to sufficiently link appellant to the sample

k) The government called two tire company executives who testified to the structure of two tires identified as having come from this particular rented van. They described how the blast shredded the tires. Tr. 1691-92.

IV. SPECIFIC EVIDENCE OFFERED AGAINST THE APPELLANT

1. THE TELEPHONE EVIDENCE

Agent Patkus offered a summary chart to explain the relevant telephone calls. Tr. 6670. Foundation witnesses introduced the documents from which the calls were extracted. According to the chart, calls were traced from appellant's business extension to various chemical companies; Tr. 6672-6675 and from 40 Pamrapo Avenue and the Space Station Storage facility to appellant's business telephone. There were some conflicts in the times of some of the calls in that according to the chart, on more than one occasion, appellant would have been on the phone to different location simultaneously on more than *13 one occasion. Tr.6750.

Bell Atlantic's James Gaughan testified to phone calls made from the Space Station Storage facility to the appellant s residence although he could not state whether any one actually answered the calls.

2. SEARCH EVIDENCE

The government conducted a search of appellant's home and office and introduced items at trial recovered from these searched premises. Ten to fourteen agents unexpectedly entered appellant's home and conducted a sweeping, all inclusive search. According to the return on the search warrant, (M20), innumerable items were removed from the home. They recovered a quartz clock with wires which the government characterized as a timing device. Agents discovered and seized photographs of appellant with Mr. Abouhalima. In appellant's office, agents discovered several pieces of Litmus paper. Agents testified in a contradictory fashion concerning whether the litmus paper strips were recovered from appellant's home or place of business - a location where such papers were commonplace. The government alleged these papers were similar to papers found at 40 Pamrapo.

3. CUSTODIAL STATEMENT

The government offered evidence that during his arrest and with 10 to 14 agents standing in his home, appellant stated *14 "I'll talk; it get's complicated". Tr. 6043. Agents testified appellant was "Mirandized" and signed a waiver prior to taking the statement.

Agents also apparently discovered in Mr. Salameh's apartment at 34 Kensington Ave. Jersey City, New Jersey a photograph of appellant and Mr. Salameh. They also recovered a photograph of Mr. Nosair - notorious for having killed Meir Kahane. This was introduced over vigorous objection.

V. THE ALLIED SIGNAL COMPANY WITNESSES

Several of appellant's Allied Signal co-workers testified on the government's behalf. According to Thomas Mathews, a list of chemicals offered by the government as ordered by appellant were not chemicals appellant needed in his work as an Allied Chemical engineer. Tr. 2023. Robert Rusenko testified he supervised appellant and although he gave identical testimony about the same list cf chemicals, his primary purpose was to identify a voice recorded by the New York Daily News following the blast admitting the crime. Tr. 2040. Mr. Rusenko stated he recognized appellant's voice as that recorded by the News. Sean O'Leary, yet another Allied employee, also identified appellant's voice on the Daily News tape recording. Tr. 5134-35.

Carmen Cecala, a fellow Allied employee, testified to appellant's ability to read, write and speak Arabic. Tr.2063. She stated his assigned telephone extension number remained the *15 same even if his physical location within the company changed. Tr.2066-67. Leslie Coale stated appellant asked to purchase some type of gas. Tr. 3210. Kathleen Timothy, an Allied employee, stated appellant ordered an unidentified chemical on February 23, 1993.

Joseph Bettano, another Allied employee, testified that on the day of the explosion appellant asked to borrow a portable radio and that this was the only time appellant ever made such a request. He also stated appellant explained to him how to construct a bomb. However, this witness previously failed to mention this discussion with the FBI at prior meetings and only raised it on direct examination. Bettano also admitted he occasionally used appellant's office telephone.

Allied'S Kelly Thina testified appellant once requested lead nitrate; he also asked Xiao Wei U about ammonium nitrate.

VI. OTHER CHEMICAL COMPANY WITNESSES

Peter Wolpert, an executive at City Chemical Corporation, testified that a customer named Kamal, paying in hundred dollar bills, bought urea from his corporation. Tr. 2975-76. He further identified appellant as a person who tried to purchase lead nitrate without the proper paperwork. Tr. 3003-04. Debra Zeiger, also from City Chemical testified that on 2/2/93 a person named Nidal telephonically ordered nitrate, hexamine and other chemicals. Tr. 3172. This person offered to pay in cash since he did not have a purchase order but she nevertheless *16 refused to make the sale. On cross-examination, counsel emphasized that she did receive a purchase order from a person named Nidal. Tr. 3177. Martin Zeiger a City Chemical employee, stated appellant attempted to buy lead nitrate from City Chemical. Tr. 3181. Evans Humenick stated that he received a message at his office from someone named Nidal Ayyad who inquired about buying certain gases but this deal was not consummated. Tr. 3233-34.

VII. VEHICLE RENTAL WITNESSES

Sarah O'Brien, another Allied Signal witness, stated appellant had rented a car from National Car Rental Agency through Allied Signal. According to the witness, appellant requested that Mr. Salameh be listed as the vehicle's second driver. Tr. 3276-77. National Car rental's Barbara Stango testified to a record of appellant renting a vehicle on three separate occasions listing Mr. Salameh as a second driver. Tr. 3461-67.

VIII. THE RYDER TRUCK RENTAL WITNESS

The government called a witness who should have proved relatively harmless to appellant but for the conduct of his counsel. Ryder's Patrick Galasso testified that on February 23, 1993, he rented out the Ryder Truck ultimately used in the blast. Tr. 3587. He stated Mr. Salameh arrived at the Ryder location with another person who remained unidentified on the *17 government's direct case. On cross-examination and for reasons known only to himself, appellant's counsel asked his client to stand and compare his height with that of his own. Tr. 3625-27. He then asked the witness if he had ever seen appellant before. The witness then identified appellant as the second man who had accompanied Mr. Salameh to rent the van. Tr. 3628. Counsel augmented the error by bringing out the fact the witness had previously identified appellant in a photo array. Tr. 3631.

The government introduced extensive evidence against Mr. Salameh indicating he rented a storage unit where they stored the bomb's chemicals. They also introduced evidence the rented Ryder truck was seen at the unit on several occasions and the truck left the storage cite on the day of the bombing. Tr. 3820.

IX. DEFENSE EFFORTS TO OBTAIN EXPERTS

Jury selection began in September 1993 while actual testimony began on October 3, 1993. It was not until January 18, 1994, sixteen weeks into the trial, however, that trial counsel formally requested the court appoint an expert witness for his client. Counsel requested the appointment of a five experts to testify to: [1] the behavior of mainstream Arab community in the United States and how it may differ from behavior in mainstream America. Specifically, counsel would offer this testimony to demonstrate that his client's telephone calls to various chemical companies, on behalf of the Kamal Chemical Co., would *18 have been performed by his client if asked by a fellow member of the immigrant community as in the [any] immigrant community this would have been done without further inquiry; Tr. 6687. [2] an expert from Cornell University to testify that appellant could not have written the Times letter because it was drafted in a different style than others contained on the same computer disk; Tr. 6690. [3] an expert from the University of North Carolina to "testify with respect to DNA related issues ...basically [to] ..review the DNA material that I have as well as the testimony of Mr. Presley" [Presley being the government DNA expert who by that time had testified] This expert would also "look into the area of population genetics and ... give ... [counsel] in essence an oral or perhaps even a written report of whether I need him"; Tr. 6692. [4] an expert from Florida to testify with respect to explosives, charges, fuses and so on". Tr. 6693. Counsel advised the court Legal Aid counsel would not communicate with him about their expert's potential testimony. Additionally, counsel believed his expert would reach different conclusions than Legal Aid's expert and would in fact so testify; [5] an expert from the District of Columbia to testify concerning computer retrieval systems, data storage and related areas. Counsel told the court that in view of the government computer retrieval expert "...I need this man to do is advise me as to what is going on up here". Tr. 6693.

The court specifically addressed counsels requests. The court rejected counsel's requested expert from the Mid-West *19 concerning immigrant behavior and suggested local, less costly substitutes. Counsel refused the appointment of the court's alternative choices because he advised the court that local, leading experts were afraid to testify. Counsel also indicated his proposes witness was unimpeachable. The court also stated the request concerned behavior not subject to expert testimony and merely reflective of ordinary human behavior - even "in Montana". Tr. 6690.

[2] The court simply denied the linguistics expert request. Tr. 6691.

[3] The court granted counsel a mere one thousand dollars for a qualified DNA analyst to serve as an expert witness. The court later stated counsel should "Go see what the DNA expert says, but a thousand dollars is all that he's going to say, and that's as much as I will put into it...Go get your DNA expert to get me something. If he's got something to really say I'll have him up here". Tr. 6699-6700.

[4] The court directed counsel to send the reports to the demolition expert but counsel stated the expert requested fifteen thousand dollars. The court responded "[w]ell, $15,000 when we don't even know what the guy is going to say and at this late date? No way". Tr. 6694. The court eventually released $1,000.

[5] With regard to the computer expert, the court denied the request and berated counsel for not having made an earlier application in view of the fact the government provided counsel *20 with these reports several months prior thereto. Tr. 6699.

In summarizing the application the court stated "If these things were necessary at some point along the line a lot earlier than January 18, you should have let me know. But here we are at the last minute." Following the court's denial, counsel reiterated that his defense for appellant "is literally predicated on my getting some of these experts". Tr. 6701

In response to the court's further inquiry, counsel stated his defense theory was based on a lack of intent def se. Tr.6701. Counsel claimed his client innocently called chemicals companies on behalf of friends and as proof of same, he gave either his own name or that of his company.

After the court denied counsel's requests, counsel advised the court he wished to withdraw from the case. Tr. 6707. The court responded it would have him disbarred if he tried to make such a motion.

X. INFLAMMATORY MATERIAL SEIZED FROM APPELLANT AJAJ'S LUGGAGE

Despite objections, motions for mistrial, motions for preclusion, severance and limiting instructions, the court admitted against all appellants numerous documents and literary materials seized from appellant Ajaj upon his arrest by immigration officials. Ajaj was arrested nearly six months prior to the explosion. Tr. 7074-75, 7320-21, 7340-44, 7226-27, 7231-34, 7247-5, 7286.

The government translated all of these documents into *21 english. Documents concerning weapons, poisons and explosives were admitted. Tr. 7226- 27, 7271, 7377-78. Others related to fighting and defeating Americans and Zionists with machine guns and terrorism as a religious duty. Tr. 7249. Further, the documents advocated a revolt to liberate Palestine, Tr. 7355, 7391-98, and imploring support for the Jihad. Tr. 7455.

A videotape was also discovered in Ajaj's luggage and played for the jury. It simulated the destruction of an American embassy by fundamentalist revolutionaries through a suicide car bomb attack. The image of the car bomb destroying the embassy is accompanied by the sound of men chanting the Koran. Tr. 7485-7513, 8216.

ARGUMENT

POINT I

WHETHER IT WAS ERROR TO EMPLOY FRE 801 (d)(2)(E) (DECLARATIONS OF CO-CONSPIRATORS) TO ADMIT AT TRIAL, AGAINST ALL CO-DEFENDANTS, BOOKS VIDEOTAPES AND OTHER LITERARY FORMS OF EXPRESSION FOUND IN THE POSSESSION OF AND SEIZED FROM ONE CO-DEFENDANT WHERE THERE WAS NO EVIDENCE THE NON-POSSESSORY CO-DEFENDANTS EVER SAW OR ADOPTED THE MATERIAL AND THE MATERIAL FAILED TO CONSTITUTE "STATEMENTS" UNDER FRE 801 (d)(2)(E).

Mr. Ajaj possessed inflammatory books, manuals, instructional videotapes and other documentary evidence outlining among other things how to construct incendiary devices and destroy government installations. Specifically, he possessed two *22 videotapes. One advocated a holy war against Jews, Christians, and Americans. The second tape was of particular inflammatory note as it simulated the blowing up of an American embassy in the Middle East. Mr. Ajaj also possessed magazines and books depicting aspects of a purported holy war between muslims and zionists and a war to liberate the Palestinian home land through the use of explosives and sabotage. The materials suggested that explosives were to be used in the name of Allah and the material expressed a desire to manufacture explosives in the name of God. The literature also discussed suicidal warfare in the course of the Jihad. One document was called "Facing the Enemies of God Terrorism as a Religicus Duty". Tr. 7074-75, 7320- 21, 7340-44, 7326-27, 7231-43, 7247-51, 7271, 7286, 7377-78, 7447-49, 7564-67, 8192-8212.

INS officials seized these items from Mr. Ajaj as he attempted to enter the United States under a false passport. INS officials remanded him to an INS hold facility pending an immigration proceeding. He remained incarcerated from that day forward. The government seized and retained all of the materials following the arrest and eventually turned them over to the FBI. There was no evidence in the record that either the appellant or any of his co-defendants ever read, viewed or in any way adopted these materials.

At trial, over objection, the court permitted the government to introduce the books, manuals, and videotapes against Mr. Ajaj and the rest of the appellants. Tr. 7053-4, 7247-49. While the *23 record is not exactly clear, the court appeared to ground the item's admissibility on FRE 801(d(2)(E) - Co-conspirator statements. Tr.7320-21.

The contention that the court admits these materials under the co-conspirator exception is buttressed by a letter drafted by Mr. Salameh's counsel, Robert E. Precht dated December 30, 1993 The ("Precht Letter"). Document 130. The Precht letter was written in response to the government's letter dated December 21, 1993. Document 225. The government's letter was offered to apprise the court of the government's intention to introduce material advocating violence to achieve ideological goals; materials advocating violence against the United States; and materials advocating violence against Israel. The government argued these materials were admissible as probative of both the defendants' knowledge and intent for the crimes charged and as a motive for committing them.

The Precht letter argued the material was irrelevant, too prejudicial given its marginal relevancy, and would confuse the jury and unduly delay the trial. Document 225. Moreover, the Precht letter argued these statements were not co-conspirator statements.

Rule 801(d)(2)(E) of the Federal Rules of Evidence ("FRE") provides that a statement is not hearsay if made "by a co-conspirator of a party during the course and furtherance of the conspiracy." The threshold question is what constitutes a statement under FRE 801(d)(2)(E). FRE 801(a) defines a *24 "statement" as an oral or written assertion or nonverbal conduct of a person if it is intended by that person to be an assertion. FRE 801(a). According to the Notes of the Advisory Committee on the Proposed 1972 Rules, the effect of the definition of a statement is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or non-verbal, not intended as an assertion unless intended to be one.

Verbal assertions readily fall within the category of a statement as they are intended as communication. Nonverbal assertions are more equivocal but in some instances also constitute "statements". The determinative factor is whether the nonverbal expression or communicative behavior amount to a substitute for words. For example, pointing in response to a person asking which way is North or shaking one's head in response to whether he or she is thirsty constitute assertions substituting for "that way" or "yes". Generally, these wordless statements are simple, nonverbal cues tantamount to word substitutes. Contrapositively, acts which fail to manifest an assertion intended as a word substitute are not non-verbal "cues". Thus, they are not statements under FRE 801 (a).

FRE 801 (d)(2)(E) constitutes non-hearsay under the Federal Rules of Evidence but its use of the term "statement" is the same definition applied throughout Article VIII - the Hearsay Article. Thus, there is limitation upon the admissibility of statements of co-conspirators to those made during the course and in furtherance of the conspiracy. While the ever increasing view of *25 agency in criminal law might suggest wider admissibility of co-conspirator statements, the prevailing view is to limit their admissibility to those statements made in the course of and in the furtherance of an ongoing criminal activity. They are inadmissible once the conspiracy's objectives have either succeeded or failed. Krufewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949).

Before admitting a co-conspirator's statement over an objection, the trial court must examine whether the proffered statement satisfies the requirements of FRE 801(d)(2)(E). FRE 801 (d)(2)(E) provides that the statement is not hearsay, thus admissible, where there is evidence of a conspiracy between the "declarant and the non-offering party, and ... the statement was made during the course and in furtherance of the conspiracy." Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct 2775, 277b, 97 L.Ed.2d 144 (1987).

FRE 104(a) requires that the court determine preliminary questions concerning the admissibility of evidence bound only by the evidentiary rules on privileges. Thus, when preliminary facts relevant to FRE 801(d)(2)(E) are disputed (namely whether the requisite conspiracy exists between the declarant and non-offering party) the government must prove them by a preponderance of the evidence. Id. 483 U.S. at 176, 107 S.Ct. at 2779. Additionally, the court must determine by a preponderance of the evidence that the statements were made in the course and in the furtherance of the conspiracy. *26Id. 483 U.S. at 175-176, 107 S.Ct. at 2778; United States v. Orena, 32 F.3d 704, 711 (2nd Cir. 1994); United States v. Maldanado-Riviera, 922 F.2d 934, 958-59 (2d Cir. 1990), cert. denied 501 U.S. 1211, 111 S.Ct. 2811, 115 L.Ed.2d 984 (1991). Presumably, this standard ensures that damaging statements are not offered against a party under the guise of FRE 801(d)(2)(E) where there was no real evidence of the conspiracy supporting its admission.

FRE 801(d)(2)(E) requires a conspiracy involving the speaker and the party against whom the statement is offered. The statement must be made during the course and in furtherance of the conspiracy. The "in furtherance" requirement assures that the statement fits the aims apparently motivating the venture. It also provides for some indication that the statement is trustworthy. The Supreme Court has repeatedly found the "in furtherance" element important and necessary for the statement's admissibility. See. United States v. Nixon, 418 U.S. 683, 701, n. 14, 94 S.Ct. 3090, 3104, n. 14, 41 L.Ed.2d 1039 (1974) (Declarations by one defendant are admissible against other defendants upon a showing of a conspiracy among one or more of the defendants and the declarant and the declarant's statements were made in furtherance of the conspiracy).

Not all statements satisfy the in furtherance requirement. Generally they suffice where they initiate a transaction, United States v. Eubanks, 591 F.2d 513, 518-521 (9th Cir.1979) (statements organizing drug rings, describe past actions or organize future strategies); *27United States v. Christian, 786 F.2d 203, 212 (6th Cir. 1986)(discussing where to consummate a narcotics transaction and reporting another conspirator's observations); United States v. Moody, 778 F.2d 1380, 1382-1383 (9th Cir.)(identifying people who would go abroad to procure narcotics, or keep members updated on the venture's progress and problems); United States v. Herreo, 893 F.2d 1512, 1528 (7th Cir. 1990) (E's statement to G and H that the money was missing was part of the information flow that sustained the conspiracy).

Keeping members informed in a joint venture is an ongoing problem in that criminal ventures generally do not operate in plain view. Therefore, statements encouraging trust, cohesiveness, continuing cooperation or ongoing membership fulfil the "in furtherance" requirement. See. United States v. Gomez, 810 F.2d 947, 953 (10th Cir. 1987), cert. denied. 482 U.S. 908.

Statements designed to induce the assistance of a coconspirator satisfy the "in furtherance requirement;" See. United States v. Heinerman, 801 F.2d 86, 95 (2d Cir. 1986) (Statement by one co-conspirator to another encouraging him to further his involvement by acquiring other tax exempt properties); United States v. Paone, 782 F.2d 886, 391 (2d Cir. 1986). Forceful statements or threats further the venture where they are utilized to seek compliance with strategies or plans, United States v. Simmons, 923 F.2d 934, 945 (2d Cir. 1991) as do statements to outsiders to allay their fears concerning a proposed transaction. United States v. Yarbrough, 852 F.2d 1522, 1535-1536 (9th Cir. 1988), cert. denied, 488 U.S. 866. *28 Statements informing others of conspirators' roles and identities, United States v. Roldan-Zapata, 916 F.2d 795, 803-804 (2d Cir.)(statement to would-be buyer A that RZ was the boss and furthered the conspiracy by informing A of RZ's identity and role and reassuring A to proceed in the presence of someone with whom he was not familiar). Statements made to acquire and seek new conspirators, United States v. Patton, 594 F.2d 444, 447 (5th Cir. 1979) or secure cooperation or the assistance of outsiders also satisfy the requirement. United States v. Mayberry, 896 F.2d 1117, 1121 (8th Cir.); United States v. Garcia, 893 F.2d188.

In practically all of these circumstances, the statements are made in the course of affirmative action. By making the statement, the declarant seeks to directly influence the non-offering party or perpetuate the goals of the venture through a co-conspirator or third party. The declarant has uttered words or taken action that will somehow influence the conspiracy and its participants. Counsel does not offer this exhaustive list as a review of the prevailing law per se; counsel offers these examples to illustrate that literature and videotapes in one's possession fail to satisfy what the courts consider statements. As the context of these declarations imply discourse between co-conspirators, there is no support for the contention that a coconspirator's knowledge concerning how to conduct illegal activities or perpetuate a criminal venture is necessarily imputed to his conspirator especially where this knowledge is *29 contained in literary material seized under the facts shown in this case. Absent some affirmative undertaking by the enlightened conspirator intended to transmit these ideas, the fact he is privy to them does not mean they are statements in the course and furtherance of the conspiracy. To impute culpability on appellant is to punish him for the contents of another's thoughts and literature. This is not the context of FRE 801(d)(2)(E).

Nor is the admission of this evidence harmless. The introduction of inflammatory propaganda designed to instil fear in the minds and hearts of its readers, and in this case the jurors, has marginal probative value against the possessor. Here, the court expands the admission of such evidence to nonpossessory third parties. The court expands the case's evidence beyond logical inference and from this testimony assigns a possessory interest in these materials to those with no factual or testimonial link to the materials whatsoever. Nor is there any indication appellant adopted the materials which might justify its admissibility.

Given the case's notoriety as well as the defendant's obvious arabic ethnicity coupled with the 1991 war against the Islamic nation Iraq, this evidence might imply that certain persons of arabic descent might seek to commit violent acts against the United States and other western nations. When confronted with such evidence suggesting revenge for an imagined wrong, a reasonable juror might be persuaded to believe that any individual who possessed material in the volume, scope and *30 quantity as possessed here, must be engaged in militant actions against the United States. The explosion of the World Trade Center would have simply been the overt act of war committed by someone who subscribed to these beliefs. It can hardly be argued in good faith that evidence of this magnitude was harmless. It admission mandates reversal and a new trial.

POINT II

APPELLANT'S TRIAL COUNSEL AFFORDED INEFFECTIVE REPRESENTATION AS EVIDENCED BY HIS IMPROPERLY PREPARED PRE-TRIAL MOTIONS, POINTLESS CROSS-EXAMINATION BUTTRESSING THE GOVERNMENT'S CASE, FAILURE TO PROCURE EXPERT ANALYSIS TO SUPPORT A COGENT DEFENSE THEORY AND TO COUNTER THE GOVERNMENT'S SCIENTIFIC AND TECHNICAL EXPERTS.

I. PRE-TRIAL PREPARATION:

Atiq R. Ahmad, an attorney not admitted to the bar of the Southern District of New York, represented appellant at trial. He was subsequently admitted pro hac vice on motion of local counsel. Mr. Ahmad's application was granted on May 5, 1993. He was a member of the Maryland and Virginia bars and admitted to the District of Columbia Circuit Court of Appeals on July 15, 1985. His motion was void of any mention of his criminal law experience. [Doc.16].

Though he was retained counsel as early as August 17, 1993, he requested the court appoint him as counsel under the CJA program. [M1] It should be noted that on April 14, 1993, appellant's prior counsel, Leonard Weinglass, Esq., advised the court through a letter that appellant's family was unable to *31 retain counsel due to financial circumstances. He requested CJA appointment but the court apparently took no action. [M2]

On September 7, 1993, Ahmed wrote an additional letter requesting CJA funds and noted outright that appellant could not pay counsel. [M3] On September 15, 1993 counsel procured from appellant the requisite financial affidavits in support of CJA appointment. Document 53. On November 10, 1993, in a conference in chambers, the court denied the application referring to Judge Mukasey's decision in a related case. Tr. 2476-77. The court's refusal was based on the fact counsel was not a member of the Southern District CJA panel even though under certain circumstances this does not necessarily preclude appointment. [M-4]

Counsel filed numerous pre-trial motions seeking various relief: [1] inspection of Grand Jury minutes; Doc. 88. [2] dismissal of the indictment; Doc. 87. [3] disclosure of evidence of "other acts" and exclusion thereof; Doc 86. [4] general pretrial discovery; [5] change of venue; Doc 82. [6] disclosure of a list of jurors and potential witnesses pursuant to 18 U.S.C. 3432; Doc 72. [7] disclosure of inducements, threats, promises, or payments to prospective government witnesses; Doc 73. [8] a bill of particulars; Doc. 89. [9] severance premised on Bruton issues; Doc 77. [10] suppression of identification; Doc. 76. [11] suppression of a statement made by appellant; Doc. 85 and, [12] suppression of items taken in the course of a search executed pursuant to a warrant in the defendant's home. Doc. 75.

*32 2. THE COURT'S RULING ON THE MOTIONS

Counsel's motion format left little doubt that he was entirely unfamiliar with this district's motion practice. He failed to offer separate factual affidavits and an accompanying memorandum of law save for a few cited cases. These incomplete and unsubstantiated filings left the Court without a clear understanding of the relief soough or counsel's basis for same. The Court summarily denied appellant's motions and never ordered a hearing to afford him an opportunity to air his claims. This utter failure to properly pursue pre-trail motion practice is apparent in the the district court's rulings.

The Court's decision demonstrates counsel's clear inadequacy. The court's decisions were as follows: [1] Motion to Inspect Grand Jury Minutes and to Dismiss the Indictment, the Court denied the motion and stated:

Ayyad has not provided a single allegation of governmental misconduct to indicate necessity for such a sweeping disclosure...Speculation as to what might have occurred is totally insufficient.

Court's Order Dated 0/13/93: Doc. 47. The ("Order")

[2] The Motion to Dismiss was made "in mere conclusory fashion" and denied since the indictment properly tracked the statutory language; Order at 23. [3] The Motion to Disclose other Act Evidence was rendered moot as the government did not intend to offer such evidence; Order at 24. [4] The Motion for General *34 against the move on what appears to be its personal observation of widespread publicity and an incorrect belief that the defense had spread the publicity. Order at 25.

[6] The Motion to Disclose a list of Witnesses was also mooted by the fact the government had decided not to seek the death penalty; Order at 25. [7] The Motion to Disclose Inducements was mooted as well as in effect being a motion to disclose "3500" material; Order at 26. [8] The Demand for a Bill of Particulars was also denied in that the indictment clearly spelled out the allegations against appellant; Order at 26. [9] The Motion for Severance was denied on both grounds proffered. The first, was again mooted as the government advised it had no "Bruton" evidence it intended to use. The second addressed the "conflicting or irreconcilable" defenses among defendants. The attached affidavit [the only motion which included a factual affidavit] incredibly alleged that counsel intended to call "several codefendants as witnesses..." The proffered testimony of the other defendants consisted of a few lines of conclusory statement such as "The testimony of the codefendant Salameh is expected to establish that the defendant Ayyad did not violate any criminal laws of the United States." No affidavit of the potential witness was attached as required by United States. v. Finkelstein, 526 F.2d 517 (2nd Cir. 1975). If in fact there was an agreement for one or more of these defendants to testify on behalf of appellant, the failure of his trial counsel to properly present such an affidavit before the district court deprived him *35 of that opportunity.

[10] The Motion to Suppress Identification was denied as the court viewed a copy of the photo array and determined there was no suggestiveness in the array. If there were any impropriety in the array, trial counsel failed to properly raise the issue through the necessary papers. Counsel merely argued in conclusory form and did not cite a single factual problem with the identification procedure. Instead, he stated "[i]n the event that any identification[s] occurred after the Defendant's arrest, given the above information, such identification[s] was impermissibly suggestive, and there is a substantial likelihood of irreparable misidentification." Order at 26. This submission is legally deficient and reflects a fundamental misunderstanding of the necessary showing in order to succeed on such a motion.

[11] The Motion to Suppress Statements was improperly made and it caused the appellant irreversible prejudice The district court recognized counsel's failure and indeed implied it had given him a chance to rectify his deficient filing. In this clear and devastating failure in his motion practice, counsel failed to even submit a legally sufficient motion concerning his client's post arrest statements. As the district court found, "Counsel for Ayyad does not disclose what the statement is, nor identify it, other than stating that it contains six words." Order at 28-29. It appeared to be counsel's contention that agents burst into his client's home and failed to mirandize appellant prior to his making post-arrest custodial statement. Agents latter testified *36 that appellant was properly mirandized. However, the clear issue is whether the appellant, who was in the process of being arrested in his home by 10 to 14 agents who were also simultaneously searching his home, made a knowing and willful waiver of his right to counsel prior to making such a statement.

What compounds the error so egregiously is that after the motion was filed, the government in a letter dated July 15, 1993, alerted counsel to the fact his motion was unsupported by an affidavit from his client or another person with personal knowledge of the facts as required under the law. The court denied the motion precisely because no such affidavit was filed. "That deficiency has not been corrected in the six weeks since that time. Therefore, the application to suppress is denied." Order at 28. Even after the court denied the motion, clearly expressing its reason for doing so, counsel still failed to resubmit the motion. Counsel had ample time to readdress the issue as the government introduced statement evidence at the virtual conclusion of its case.

As a direct result of this failure, the government introduced an awesomely devastating statement obtained at the time of Appellant's arrest namely, "I'll talk, it gets complicated". Tr. 6043. This statement's import is obvious as it is clearly an admission and quite possibly a confession. There can be no more damning piece of evidence than an admission.

[12] Counsel also improperly submitted the Motion to Suppress Tangible Evidence. Trial counsel attempted to challenge *37 the search of his client's home on constitutional grounds. He failed to controvert the search warrant on inadequate probable cause grounds but rather alleged the search was too broad and executed beyond the warrant's parameters.

He also alleged the warrant was somehow "misleading" which seemed to be an attempt to establish the criteria for a "Franks" hearing. In both instances, however, the motion on its face was woefully inadequate and failed to allege sufficient factual detail to permit the District Court to consider the relief requested. Counsel alleged virtually no facts and there was no basis from which the court could rule in the appellant's favor despite the potential substantive legal issues available to counsel.

Counsel's motion papers did not state what piece of evidence he alleged was retrieved as a result of the overly broad search. Incredibly, he failed even to describe what he called a general exploratory search and how it supposedly violated his client's rights through the seizure of items beyond the warrant's authority.

Because of counsel's failure, the district court only analyzed the probable cause issue and did not address the whether warrant was executed in a constitutionally acceptable fashion. It stated: "[i]mportantly, the affidavit provided a basis for concluding that, on the day before the bombing, Salameh made four calls to appellant's office at the chemical company where *38 appellant worked as a chemical engineer." [FN1] The search of this appellant's home was performed by 10 to 14 agents in a rather electrified atmosphere given the investigations status concerning the magnitude of this terrorist attack. The sheer volume of the materials removed from the appellant's home, as evidenced by the return on the warrant, lent sufficient credibility to the proposition that this search was not executed in a constitutionally permissible method. [M5].

FN1. In fact, there was no such evidence in the record. The complaint had indicated four calls were made from the public phone booth at the storage area to the appellant's phone but there was no indication who had made them. Counsel's inattentiveness failed to discern this fact even after the decision.

Counsel failed to challenge the search of his client's office space though the computer diskette recovered there contained a devastating piece of evidence. The government notified counsel of the content of sectors 477-79 from computer disk Q-78 on July 17, 1993. Even though notification was after the original date for the filing of motions, counsel could easily have filed a motion given the seriousness of the evidence contained on the disk. Prudent counsel would indeed have done so. Once again based on the same rationale including the volume and breadth of materials seized from appellant's office, cousel should have properly made a constitutional challenge.

Counsel's failures resulted in appellant not having had a fair opportunity to bring before the District Court legitimate challenges to government conduct. Specifically, appellant lost *39 the possibility of transferring the trial to a more neutral district; he lost the possibility of a severance premised on his co-defendants' willingness to testify on his behalf; lost the right to challenge the in court identification; lost the right to suppress a post arrest custodial statement; and finally lost the right to challenge the admission of evidence recovered from his home and office space. Thus, even before trial began, appellant was severely crippled by the actions of the sole individual who was supposed to defend him. He thus walked through the breach alone.

COUNSEL'S TRIAL REPRESENTATION

Appellant's counsel also failed to afford him with effective representation at trial. The trial record is replete with instances of senseless and peculiar cross-examination that either bolstered the government's case or presented contradictory defense theories. Besides filing legally deficient and ineffective pre-trial motions, counsel committed prejudicial investigative omissions. Specifically, he failed to retain experts for pre-trial investigation and failed to consult or retain experts to analyze numerous scientific reports generated by the government's expert witnesses. This failure left the appellant vulnerable to uncontested, damaging testimony.

At trial, the government presented substantial evidence that an incendiary device exploded on the B-2 level of one of the World Trade Center Towers. The government's evidence took the form of forensics expert testimony and victims who testified to *40 the effects of the blast. Despite the overwhelming evidence that a bomb caused the damage, counsel pursued a theory that there was no incendiary blast and the excessive damage resulted from a myriad of impossibilities.

In support of this theory, counsel asked witnesses whether they knew if the building contained dentist offices. Presumably, counsel intended to argue an explosion from a dentist's office ripped through several floors of concrete and steal leaving a crater in the building's foundation. Counsel asked this seemingly non-sensical question absent any pre-trial investigation. Moreover, the blast was centered in a parking lot - not an area generally rented as dental office space. However, counsel failed to make these basic, pre-trial inquiries prior to embarking on an almost comical defense theory given the overwhelming forensics evidence. Instead, counsel attempted to argue a gas explosion from a non-existent tenant tore through the Trade Center's concrete and steal. Tr.147, 162-65.

Trial counsel also questioned witnesses whether a transformer malfunction caused the massive explosion. In effect, this line of questions undermined the dental/gas explosion theory. The transformer hypothesis was also inept as further testimony indicated the area of the blast (the garage) did not contain transformers. Again, pre-trial investigation of the building's plans and the location of the transformers would have easily revealed the futility of this type of cross-examination. Tr. 799-800.

*41 Counsel was not content with his uninvestigated dental office supply, gas tank and transformer theories. He also inquired about a fire in the building during its construction in 1970 in an inexplicable attempt to claim a construction fire that occurred 23 years prior to the explosion somehow caused the damage. Counsel pursued this theory despite the overwhelming forensics evidence that an incendiary device detonated within a Ryder van parked in the building's garage. Tr. 799-802.

Finally, counsel preferred questions about the existence of vehicles in the parking area with auxiliary tanks filled with residual gas. Presumably, counsel attempted to argue the blast was the result of a chain reaction gas tank explosion despite his failure to procure supportive expert testimony.

These alternative, highly unviable theories evince a lack of preparation and a disjointed defense. even the trial judge questioned the relevancy of the cross-examination. Tr. 1110. The unreasonableness of these tactics and attempts to disprove the obvious explosion only gave credence to the government's theory that a bomb in fact exploded and killed six people. Counsel's misguided efforts even turned to blaming a victim killed in the blast. Apparently, one of the deceased sold dental or medical supplies and was scheduled to lunch with a friend at the Trade Center. Counsel questioned whether the victim carried samples or other items capable of causing the explosion. The argument is totally absurd given the blast's magnitude and the fact medical sales representatives do not transport explosives or at least *42 items so combustible that they could level numerous floors in a huge office building.

COUNSEL'S FAILURE TO PROCURE EXPERT ASSISTANCE

It is clear from the record, counsel did not understand explosives or their effects. He attempted to disprove the obvious incendiary explosion through blaming a victim and asking contradictory questions not based in technical expertise or fact. Counsel's ineffectiveness in traceable to his failure to obtain expert assistance pre-trial and during trial to review the government's expert's testimony. Moreover, it was not until January 18, 1994, that counsel formally approached the court and requested money to retain an expert. January 18, 1994, was near the trial's completion and the request, at that late date, was ostensibly useless as the opportunity for effective cross-examination had long passed.

Counsel's failure to consult with experts or in the alternative review relevant scientific literature is apparent in his cross-examination of all the expert witnesses. For instance, in his examination of two employees of tire companies who gave testimony in the nature of expert testimony, each expert testified that they examined the damaged Ryder truck tires and determined only a bomb could so severely shred them. These witnesses testified tires rarely shatter as they aye designed to withstand substantial force. Instead of exploring under what other circumstances tires may shatter, counsel asked the tires' *43 purchase price. Tr. 1703-1704.

Counsel's unreasonable conduct went well beyond mere omissions; he actually managed to assist a government witness identify the appellant as the person who drove a co-defendant to the Ryder rental agency to obtain the very van that supposedly exploded. Specifically, a Ryder employee testified that he rented an econoline van to defendant Salameh. The employee identified Mr. Salameh at trial but did not identify the person who allegedly dropped Mr. Salameh off at the agency. On cross-examination, appellant's counsel inquired whether he had actually seen this other person and his physical characteristics. The witness then stated he had and pointed to the appellant. Despite no testimony on direct concerning appellant and his relationship with Mr. Salameh concerning the van, counsel managed to assist a witness identify the appellant in front of the jury as the person who arrived with Mr. Salameh to rent the van involved in the blast.

Further, at trial, the government offered voice identification testimony. Apparently, after the explosion, the New York Daily News received a phone call from an unidentified individual claiming responsibility for the blast. The News recorded the call and gave it to the FBI. Tr. 5161. At trial, the government called two of appellant's co-workers who listened to the tape and testified the voice on the tape was the voice of their co-worker - the appellant. This was devastating evidence. Counsel on cross-examination of one of these witnesses, elicited *44 the fact that the caller had a middle-eastern accent. This is inexplicable given his client's ethnicity. Additionally, one would think that after bringing out this apparent identifying characteristic of his client, competent counsel would then have brought out that appellant did not have such an accent. However, no evidence was forthcoming.

Most importantly, he did not consult or obtain an expert to analyze whether the taped voice scientifically correlated with appellants. Assuming there was some discrepancy between the two, counsel would surely call the voice forensics expert to testify on the defense case However, counsel failed to consult with an expert to determine whether the government's offered testimony was accurate.

Counsel's unreasonable failure to at least vigorously cross-examine these two witnesses is almost a concession that their testimony was accurate and truthful. Given the incredibly damaging import of a confessional phone call to a national newspaper, such a concession is simply too prejudicial. Most importantly, the government offered the voice identification through the lay testimony of co-workers, not a highly specialized audio technician. The government's decision to forego audio analysis may have left the defense an opportunity to discredit the identifications through its own experts. However, there is no indication counsel explored this option. He simply conceded the identification and accepted lay testimony.

Counsel substantiated the government's case during those *45 1 mited times he engaged in active cross-examination. For example, employees of City Chemical Co., testified appellant contacted them to purchase lead nitrate in cash transactions. Counsel's cross-examination seemingly substantiated their identifications of the appellant and that he in fact contacted the company. Additionally, employees of Allied and Carbonic industries testified appellant asked to purchase gas, Tr. 3219, 3181, 3172. On respective cross-examinations, counsel elicited that appellant told both witnesses he was purchasing these items for a friend. These inquiries simply enabled the government to argue that counsel substantiated the existence of the conspiracy and the appellant's role as the explosives purchaser.

The government's case included DNA saliva analysis evidence Through FBI expert testimony, the government argued the licked portion of an envelope contained DNA molecules trapped in dried saliva. Tr. 5183-5232. These DNA samples were consistent with samples taken from the appellant. Tr. 5219. According to the government, an unidentified person sent the New York Times a letter admitting responsibility for the explosion and the intent to commit further acts of terrorism against American targets in the name of the Jihad revolution. Tr. 5212-5216. The government contended the appellant drafted and sent this letter and in the process deposited his DNA on its fold while sealing it. The basis of the government's contention that the appellant drafted the letter was the recovery of a computer disk from appellant's office

*46 DNA saliva analysis is less prevalent than blood and semen analysis and the FBI expert admitted that this particular saliva test was only in effect since approximately 1992 Tr. 5072. Despite the test's novelty and the court's decision to conduct a Daubert hearing to determine the evidence's admissibility, counsel failed to retain an expert to review the FBI's findings and offer opinion concerning the reliability of the saliva test. Moreover, the FBI expert testified that blood and saliva DNA analysis are ostensibly the same, though he admitted saliva tests are less prevalent. Counsel simply accepted this statement as true and failed to seek advice or consult literature to determine whether this was an accurate representation.

This unreasonable failure to contest very damaging evidence is amplified by the fact the FBI expert admitted DNA extracted from the stamp affixed to the envelope did not comport with appellant's DNA allegedly deposited on the envelope fold. Therefore, counsel had a fertile source of cross-examination concerning the validity of the envelope test given the existence of an unidentified contributor. While it is beyond the ken of most counsel, DNA expertise is prevalent in the molecular community and continually open to debate concerning validity, accuracy and contamination. Counsel failed to pursue these routes of cross-examination except to the limited extent he tried to elicit testimony that a third party might have sneezed on the envelope while at the New York Times. Tr. 5181.

DNA evidence is a highly specialized topic that mandates *47 expert assistance in order for counsel to either effectively cross or offer it at trial. Counsel again failed to take reasonable steps to assure that he was well versed in the area and prepared to address the government's case. On the Friday before the government intended to offer the testimony, counsel complained the government failed to provide him with all of the obligatory 3500 and Rule 16 material. He was then provided with scores of material which he claimed to have reviewed over the weekend. When trial resumed the following Monday, he informed the court he reviewed the DNA reports over the weekend and his cross would be accordingly more "focused". Tr. 5229. This statement places a legitimate appellate issue in jeopardy as it may concede counsel was afforded enough time to review the reports. This is highly unlikely given the nature of DNA evidence and the fact an attorney with a professed expertise in DNA could never become focused within 48 hours. Other than a question concerning molecule jumping, counsel's cross-examination avoided molecular science or any of the fundamental DNA issues including contamination and statistical sample variation.

Besides a failure to address highly technical evidence, counsel failed to confront presumptive, prejudicial testimony open to interpretation. Specifically, the government offered the testimony of FBI agent Linda Traficanti who testified she and other agents searched the appellant's home and office. Traficanti stated she recovered what she characterized as a "timing device" though it appeared to only be a circuit board *48 containing wires. Counsel failed to object to this characterization offered by an agent who admittedly was not a detonation or incendiary device expert.

COUNSEL'S SUMMATION

Counsel's conduct during summation also fell below a reasonable standard as these errors clearly prejudiced the appellant by seeming to substantiate the government's proof. Additionally, a goodly portion of counsel's summation was not based on the record but an unrealistic view of the trial's proceedings.

Counsel's summation alleged appellant was "framed" by the government in an effort to cover up their failure to prosecute a man named Abdul Rahman Yasin who the government allegedly knew orchestrated the entire conspiracy and then let escape. Tr. 8634. Despite practically no information in the record to substantiate this contention, counsel claimed appellant was merely arrested as a result of a widening net and the decision to make a case against who ever was arrested. Again, there was no information in the record to support such a contention.

Counsel's summation also substantiated appellant's identification by a Ryder employee. Specifically, counsel asked the jury whether they remembered that "the prosecutors didn't bring out [the Ryder employee's] phony identification of Mr. Ayyad.... he said a few guys came in. He didn't say anything about the second guy (meaning appellant) until my cross-*49 examination." Tr. 8637. Here, counsel revisited his efforts to have the appellant identified despite the government's decision not to elicit such testimony on direct. The government argued appellant was involved in attempting to rent a van, whereas trial counsel countered such evidence by arguing his client was conducting a price survey. Tr. 8788.

In other instances, counsel berates the government for not calling a witness favorable to appellant's defense when counsel could have easily called the witness himself. A telling example concerns what counsel characterizes as a failure to call a voice analysis expert to identify the voice on the Daily News tape. He insists the government should have asked Ms. Cecala to identify the appellant's voice in that as Allied's secretary she was the person most familiar with it. However, despite these complaints, counsel could have asked this witness these very same questions. Tr. 8696.

Counsel ineffectively addressed the DNA issues and confused the government's expert testimony to the extent counsel appeared to argue appellant's DNA type was more prevalent than testified to by the expert. Also, counsel again pulled numbers and arguments from thin air unsupported by the record. Tr. 8699.

Other parts of counsel's summation appeared unconnected to reality. In one instance, counsel chastised a prosecutor for calling appellant a liar during the Ramadan period. Tr. 8638. In another, counsel revisited the testimony of a Mr. Bettano who testified that the appellant told him how to build a bomb. There *50 was no reason to address this issue as it was essentially a damaging admission connecting the appellant to the bomb. Tr. 8651.

Counsel also offered incredible argument concerning appellant's efforts to purchase chemicals. Though there was no evidence in the record to justify this contention, counsel argued appellant purchased chemicals for Kamal Co., for resale to the Middle East. He based this argument on the inflammatory instructional videotape depicting chemical containers with western labels. Counsel's unreasonable and ludicrous argument to the jury was that since western labels appeared on the chemical bottles depicted on the videotape, these types of explosive chemicals were being exported to the Middle East. He further states that they were being exported for legitimate purposes and that some were rerouted for destructive purposes. His argument alleged that these chemicals were presently being exported to the middle east in small quantities as a beginning enterprise to an economically expanding area. Incredibly, he then argues the appellant was purchasing these chemicals on behalf of Kamal company believing that Kamal was legitimately exporting them to the Middle East. Tr. 8659-8663. This argument is nothing short of bizarre, given the state of the record, and would surely destroy his credibility with the jury.

There were numerous instances where counsel's arguments were not based on information in the record. Counsel argued Mr. Salameh and appellant opened bank accounts for a new business *51 that eventually failed. There was no evidence in the record to support this proposition. Tr. 8657. Counsel tried to explain Mr. Salameh and appellant's relationship as that of old family friends despite no evidence in the record to support this proposition. Tr. 8652. Moreover, counsel's attempts to explain relationships absent a supporting record extended to why the appellant possessed Mr. Abouhalima's phone number. Counsel simply argued the translation of this name was incorrect despite his failure to call his own translator or cross-examine the government's translator. Tr. 8655.

Counsel also addressed the numerous phone calls offered against the appellant by arguing the appellant was out of the country getting married and on his honeymoon during much of the conspiracy. Tr. 8674. Incredibly, counsel during summation actually stated, "witness after witness came in and said Ayyad was abroad" Tr. 8673. In fact, no witness testified to the counsel's contention. Counsel went on to argue that appellant was actually in Florida during part of January 1993; that he wa in Kansas for half of 1992; that he was overseas getting married in December, 1992 and that he was also in Buffalo during a portion of the conspiracy. Tr. 8682-84. No such witness was ever produced at trial to testify to support these propositions. The only possible support to such an inference was a few collect calls made to the appellant's residence from some Southern states during this time period. Counsel failed to produce witnesses to support these contentions as to where his client was during these *52 time periods. Cousel's failure to support these argument effectively destroyed his remaining credibility.

Counsel's actions were so egregious that the court admonished and reminded him that "... in this Circuit, there is a doctrine of Fair Reply. So that if someone talks about something as to which there is no evidence whatsoever, the government in rebuttal [may] reply to it and say, why wasn't there any evidence?" Counsel responded that he was drawing certain inferences to which the court responded "Yes. But you can't make it up. And what you done is come out with things which have absolutely no basis whatsoever in the record." Tr. 8686.

The Supreme Court first recognized a constitutional right to the effective assistance of counsel in Powell v. Alabama, 87 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). From there, the Court ruled the Sixth Amendment is violated where judicial action denies a defendant effective assistance of counsel. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Following its recognition of an equal protection right to appointed counsel on first appeal, the Court also held a defendant exercising such an appellate right also had a constitutional right to the effective assistance of his appellate counsel. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). In Evits v. Lucy, 468 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), after concluding the constitutional right to counsel on a first appeal of right also *53 had a due process grounding and applies to retained counsel, the Court found a defendant was entitled a fortiori to effective representation by retained counsel on that appeal. Thus, the Court reasoned, a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all. Id.

When analyzed together, the Court has held a constitutional requirement to the effective assistance of counsel extends to counsel's performance in any proceeding where the accused would have the right to appointed counsel if indigent and retained counsel if a non-indigent.

The guarantee of counsel is not satisfied by mere formal appointment or the presence of an advocate. Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed.2d. 377 (1940); Evitts, 468 U.S. at 395. "That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command ...An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair." Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). In short, counsel's presence will not satisfy the Sixth Amendment right to counsel unless counsel is effective. Absent effective counsel, the right is meaningless. McMann v. Richardson, 387 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 1449, n. 14, 25 L.Ed.2d 763 (1970); Wells v. Vaughn, 505 U.S. 1223, 112 S.Ct. 3038, 120 L.Ed.2d 906 (1992); *54 United States v. Matos, 905 F.2d 33, 42 (2nd Cir. 1990). The Supreme Court held in Strickland, to sustain an ineffective assistance claim, a defendant must show both (i) "... counsel made errors so serious that counsel was not functioning as counsel guaranteed ... by the Sixth Amendment" and (ii) the "deficient performance prejudiced the defense." Strickland, 466 U.S. at 687; Maddox v. Lord, 818 F.2d 1058, 1061 (2nd Cir. 1987).

With respect to the Strickland tests first prong, the Court stated the defendant "must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688; 818 F.2d at 1061([p]eteitioner must show that her attorney's conduct fell below an objective standard of reasonableness...). The test's second prong requires the defendant to "show that there is a reasonable probability that, but for counsel's professional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 693; 818 F.2d at 1061(...the deficient performance prejudiced her defense").

Specifically, the competency standard outlined in Strickland addresses whether in the particular case, counsel's failings (whether in a single error or a series of errors and whether in commission or omission) kept her from achieving the necessary responsibilities of an advocate. To assist lower courts in determining when counsel has not achieved this goal, the Court established a "reasonably effective assistance standard." Attorney conduct will be generally considered unreasonable where *55 counsel's errors of omissions or commissions are attributable to a lack of diligence rather an exercise of judgment.

Strickland stated "access to counsel's skill and knowledge is necessary to accord defendant's the ample opportunity to meet the case of their prosecution, to which they are entitled." Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 2588, 91 L.Ed.2d 305 (1986), quoting 466 U.S. at 685, 104 S.Ct. at 2063 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 275,276, 63 S.Ct. 236, 240 87 L.Ed. 268 (1942). "Counsel ... has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process." 466 U.S. at 688, 104 S.Ct. at 2065. The reasonableness of counsel's conduct and performance must be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances. 477 U.S. at 384, 106 S.Ct. 2574, 2588.

Under the prevailing professional norms, it is counsel's function, "... to make the adversarial testing process work in the particular case." Id. at 690, 104 S.Ct. at 2066. This testing process fails to function properly unless defense counsel conducts "some investigation into the prosecution's case and into various defense strategies, 477 U.S. at 384, 106 S.Ct. at 2588, and "counsel has a duty to make reasonable investigation or to make a reasonable decision that makes a particular decision that makes particular investigations unnecessary." 466 U.S., at 691, 104 S.Ct., at 2066.

The trial record in this case clearly reveals that the *56 appellant's trial counsel failed to effectively "... make the adversarial testing process work..." Id. He filed factually insufficient and legally deficient motions. He failed to review the court's order and discover the court may have grounded a probable cause determination on misinformation. He inexcusably failed to retain and consult with DNA, forensics and voice analysis experts in an attempt to courter the government's technical evidence. He managed to assist a crucial witness to identify the appellant when on direct that witness only identified appellant's co-defendant. He buttressed and redirected testimony towards the appellant that was not offered for that purpose. As stated and recounted above, the record is replete with instances so serious that he was not properly functioning as counsel for a defendant facing a life count stemming from one of the most publicized cases in the history of criminal law.

There can be no question that this unreasonably deficient performance prejudiced the appellant. Prejudice also stemmed from counsel's failure to confront lay voice identification witnesses with audio-tape analysis, forensic voice identification and tape verification. All of these are generally recognized forms of forensics expertise readily available to criminal practitioners. However, counsel failed to pursue these options and conceded potentially litigious issues. It is not counsel's role to concede any ground absent clear futility. This counsel, despite his insistence that his cross would be more "focused", *57 made no attempt to exploit the fact saliva DNA evidence may be more equivocal than DNA contained in blood. Additionally, there was no possible way counsel could have been prepared to examine DNA experts on a weekend's notice. Such a representation was clearly prejudicial as it indicated counsel was prepared to proceed even though the record indicates he was not.

Had counsel diligently pursued the search issues, there is a substantial likelihood he could have excluded the admission of an extraordinarily damaging statement, a so called timing device seized from his home and a computer disk containing a facsimile of the letter sent to the Times. The exclusion of this letter alone could have easily resulted in a different verdict. Had the forensics evidence been sufficiently investigated prior to trial and then competently challenged during the trial, the result most probably would have been different.

ISSUE III

WHETHER THE DISTRICT COURT UNREASONABLY INTERFERED WITH APPELLANT'S TRIAL COUNSEL'S EFFORTS TO SECURE EXPERT TESTIMONY AND CONSULTATION CONCERNING NOVEL DEFENSE THEORIES AND DNA EVIDENCE

The Criminal Justice Act of 1964 states in pertinent part:

[c]ounsel for a person who is financially unable to obtain investigative, expert, or *58 other services necessary for adequate representation may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that person is financially unable to obtain them, the court ... shall authorize counsel to obtain the services.

18 U.S.C. Sec. 3006A(e)(1) (1988) ("the Act"). The Act recognizes that it is not enough to simply provide a defendant with a lawyer. It recognizes a defendant faces a plethora of obstacles and prosecutorial tools that can only be met with the assistance of experts. These other supportive persons assisting the defense are often essential to an adequate defense as defense counsel is trained in the law not forensics or other areas of highly technical specialization such as sociology or DNA.

Most courts rely on the defense attorney's judgment if he "makes a reasonable request in circumstances in which he would independently engage such services if his client was able to pay them." United States v. Oliver, 626 F.2d 254, 259 (2nd Cir. 1980); United States v. Sanchez, 912 F.2d 18, 21 (2nd Cir. 1990). Since the Act's inception, most requests for assistance relate to the hiring of experts and the generally accepted broad reading of the statute allows a court to consider such requested assistance on a case by case basis. United States v. Theriault, 440 F.2d 713, 715 (5th Cir. 1971), cert. denied, 411 U.S. 984, 93 S.Ct. 2278, 36 L.Ed.2d 960 (1973).

The Second Circuit recognizes the purpose of the Act is to:

clearly redress the imbalance in the criminal process when the resources of the United States Government are pitted against an *59 indigent defendant. Therefore the phrase "necessary to an adequate defense" must be construed with this commendable purpose in mind. "Necessary" should at least mean "reasonably necessary," and "an adequate defense" must include preparation for cross-examination of a government expert as well as presentation of an expert defense witness. This does not mean that applications for expert assistance should be granted automatically, or that frivolous applications should be granted at all. But it does mean that the Act must not be emasculated by niggardly or inappropriate construction.

United States v. Durant, 545 F.2d 823, 827 (2nd Cir. 1978)(reversing conviction and remanding for a new trial based on district court's denial of fingerprint expert as "necessary" under the Criminal Justice Act); United States v. Smith, 987 F.2d 888, 891 (2nd Cir. 1993).

The Second Circuit as well as The Fifth Circuit further recognize that the need for sophisticated investigative services and expert advice is heightened when the requests related to "pivotal" evidence. 912 F.2d at 22; 545 F.2d at 828; United States v. Patterson, 724 F.2d 1128, 1130 (5th Cir. 1984) (per curiam); 440 F.2d at 715. In Patterson, the Fifth Circuit stated that where the government's case is grounded on a theory most commonly and competently addressed by expert testimony, an indigent defendant must be afforded the opportunity to prepare and present his defense either through or with the assistance of an expert. Absent such assistance, the defendant (through no fault of his own) is effectively precluded from countering material evidence. In Durant, the Second Circuit Court of Appeals reversed a conviction for the district court's refusal to appoint a fingerprint expert where *60 fingerprint evidence was "pivotal" and the other evidence stemmed from two easily impeachable accomplices. Here, the District Court's refusal to afford counsel sufficient funds to retain experts was an egregious abuse of discretion.

Scientific evidence was at the core of the government's case. The government introduced highly technical DNA evidence coupled with extremely complicated forensics testimony.

In an ex parte application, appellant's counsel informed the trial court that appellant lacked the financial resources to retain five experts. Specifically, counsel sought financial assistance under the Act to retain a DNA analyst, a sociologist, an explosives/demolition expert, a computer expert and a linguistics expert. Counsel stated appellant's family could not afford any of these experts and they were critical to the defense theory.

Counsel stated the DNA expert would review the FBI expert's reports and conclusion that appellant deposited his DNA through saliva on the envelope sent to the New York Times. Tr. 6690-6692. The linguistics expert would testify that appellant did not write the letter sent to the Times as it reflected a linguistic style well beyond the appellant's literary acumen. The sociologist would offer testimony concerning the arab community and that it was not uncommon for immigrants to do favors for each other and not ask questions. Counsel argued this testimony would go to appellant's "lack of intent". Tr. 6687. The explosives expert would counter the government's voluminous forensics evidence and bolster appellant's counsel's theory that a bomb did not cause the *61 explosion. Tr. 6693. Finally, appellant's proposed computer expert would testify concerning the unreliability of erased computer disk retrieval and that information can be easily secreted on a disk absent the owner's knowledge. Tr. 6694 This testimony was to counter the FBI's expert who testified she recovered from appellant's computer disk a facsimile of the letter sent to the Times.

The trial court refused to authorize funds for the sociologist and told counsel to retain a local, less costly expert. The court also stated it did not believe this type of testimony concerning immigrant tendencies was any different concerning arabs and people in Montana. Tr. 6688-90. Counsel objected and stated local experts were unavailable as they feared reprisal. Tr. 6689-- 6691. The trial court also disregarded the request for a linguistics expert citing there was no way to testify who was the actual author from writing style. The court also denied the request concerning the Washington D.C. computer expert. The court granted a mere $1,000 respectively for the DNA and explosives expert. Tr. 6692.

These miserly rulings interfered with appellant's defense. The court was overly concerned with finances given the trial's significance and the government's reliance on expert evidence. The defense's requests sought to counter "pivotal" evidence genetically linking the defendant to a highly damaging admission and to the actual explosion. DNA evidence is still an area open to debate especially in the areas of contamination and test reliability. Appellant was entitled to fully explore these areas through his own *62 expert. Additionally, assuming counsel's defense centered on whether a bomb actually exploded, appellant was entitled to a full opportunity to explore this defense theory to either assess its viability or abandon it following the expert's recommendations. Moreover, it was not within the province of the trial court to decide what type of sociological evidence is specific to immigrant/arab communities or common to the whole nation. Appellant sought to offer this evidence in support of a lack of intent argument but the court deprived appellant of this option despite the millions of dollars expended by the government to prove the defendant's intent to bomb the World Trade Center.

The court's decision to deny sufficient finances to retain a DNA expert is most puzzling. As stated above, the DNA evidence was devastating. Counsel sought an opportunity to address it through his own expert and presumably pursue a contamination theory evidenced by his question concerning whether a New York Times employee sneezed on the envelope. Given the materiality and damaging effect of this evidence, the court's failure to afford the defense this opportunity violates the Second Circuit's longstanding rule in Durant. Durant states the need for investigative assistance is heightened when the government case rests primarily on this type of evidence.

As early as April 14, 1993, the court was aware that appellant lacks the financial ability to either retain counsel or experts. This was done via a letter from appellant's then counsel Leonard Weinglass to the district court concerning appellant's financial *63 status and the need for CJA appointment. [M6]. Two subsequent letters to the district court, dated August 17 and September 7, 1993, from appellant's new counsel Atiq Ahmed confirming that appellant was without sufficient funds to retain counsel or experts also advised the court of appellant's financial inability to continue with retained counsel and his inability to retain the required experts for his defense. [M7, M8]. Again, in November 1993, trial counsel advised the court of his client's dire financial straits. Nevertheless, on November 10, 1993, the court denied appellant's renewed request for CJA funds. This culminated with the court's final denial of CJA funds on January 18, 1994 as previously discussed.

Here, the government offered a circumstantial case founded on technical forensics and DNA analysis. Counsel needed assistance in dealing with these issues both on cross-examination and in the course of a defense case. Denial of this assistance violated both the Act and the law. Finally, the court's decision clearly worked prejudice on the appellant to the extent it left him unprepared and unable to test the government's direct case. This conduct requires reversal and a new trial.

POINT IV

THE DISTRICT COURT SHOULD HAVE SANCTIONED THE GOVERNMENT'S FAILURE TO TIMELY PRODUCE SCIENTIFIC REPORTS AND ANALYSIS PERTAINING TO DNA EVIDENCE WHERE THE DEFENSE REQUESTED THE REPORTS PURSUANT TO F.R.Cr.P. 16(a) (1) (D).

Appellant contends the District Court failed to impose *64 sanctions on the government for its failure to timely disclose the results of expert DNA analysis. Rule 16(d)(2) of the F.R.Cr.P. empowers the District court to impose sanctions on a party who fails to comply with a discovery order.

If at any time during the course of the proceedings it is brought to the attention of the court that a party ... failed to comply with this rule, the court may order such a party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. The court may specify the time, place and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.

Fed.R.Crim.P. 16(d)(2); see also United States v. Evans & Associates Construction Co., 839 F.2d 656, 660 (10th Cir. 1988) (the district court has discretion in selecting sanctions for failure to comply with discovery orders); United States v. Wicker, 848 F.2d 1059, 1060 (10th Cir. 1988).

The government's failure to comply with a discovery order prompts the court to consider three factors to determine whether a sanction is appropriate. The court should consider (1) the reasons the government delayed producing the requested materials, including whether or not the government acted in bad faith when it failed to comply with the discovery order; (2) the extent of the prejudice worked on the defendant as a result of the government's noncompliance; (3) the feasibility of curing the prejudice through a continuance. United States v. Fernandez, 780 F.2d 1573, 1576; *65United States v. Euceda-Hernandez, 768 F.2d 1307, 1312 (11th Cir. 1985); 848 F.2d at 1061.

The Second Circuit recognizes certain instances where a trial court's failure to grant a continuance constitutes reversible error. in United States v. Kelley, 420 F.2d 26 (2nd Cir. 1969), the defendants were two former narcotics officers engaged in buy and bust operations. Allegedly, the officers retained some of the cocaine seized in a raid and then made a deal with "double agent informer ... to sell it for them." Id. at 27. The informer turned the narcotics over to his own government handlers but decided to retain some of the cocaine and sell it on his own account. The informer "... commit[ed] essentially the same offense [as the officers], except one step deeper in the intrigue." Id.

The defendants moved for the discovery of scientific tests; specifically, the defendants sought fingerprint, handwriting and voice analysis, but did not specifically limit their request these to those enumerated. At Kelly's trial, the government introduced evidence from the results of a neutron-activation test which tended to indicate the subject cocaine hailed from the same batch confiscated in the earlier raid effected by the instant officer/defendants. The defendants first learned of the test's results at trial though they specifically requested the government provide the reports in their initial discovery requests. The district court denied the defendants' motion for a continuance and they were convicted.

The Second Circuit reversed the defendants' conviction holding that "fairness requires that adequate notice be given the *66 defense to check the findings and conclusions of the government's experts." Id. The Court ordered a new trial to afford the defense an opportunity to develop a full and fair cross-examination through either confronting the government's test with their own neutron - activation test or through other means of impeachment. Id.

The Kelley decision places the "[g]overnment on notice of its serious obligation not to obstruct a criminal defendant's cross-examination of expert testimony. United States v. Mangan, 575 F.2d 32, 47 (2nd Cir. 1978); United States v. Dioguardi, 428 F.2d 1033, 1037-38 (2nd Cir.) cert. denied, 400 U.S. 825, 91 S.Ct. 50, 27 L.Ed.2d 54 (1970). Absent the opportunity to meet and overcome expert testimony through informed examination or other experts, the defendant faces "trial by ambush" 410 F.2d at 29 which defeats the concept of a fair, adversarial system where objective jurors assess the evidence of opposing parties to determine the more credible.

Here, the court set an original return date for the production of Rule 16 and additional discovery material by July 6, 1993. [Doc.35 at 33]. The court's ruling noted the importance of the defense cousel having an opportunity to have its experts examine the expert reports of government witnesses. Accordingly, the court allowed a forty-five day period for the examinations. [Doc.35 at 33]. It was the obligation of government counsel to produce their expert reports prior to this time period to allow adequate pre-trial review.

*67 Appellants were arraigned on a superseding indictment in August 1993, whereupon the court set a return date for additional motions of September 3, 1993 with the government's response due approximately one week later. Given the extraordinary amount of expert testimony in this case, it behooved the government to comply with Rule 16. Nevertheless, the government failed to adhere to Rule 16's mandates as evidenced by an interchange of letters between cousel requesting these materials; the application by defense cousel prior to trial's commencement requesting the government comply with court ordered discovery schedules; the production by the government as late as January 1994 (more than half way through the trial's completion) of updated laboratory reports. This culminated with appellant counsel's objection to the government's production of Rule 16 material under the guise of 3500 material immediately prior to the government's DNA expert testifying at trial. Such noncompliance, given the technical complexity of DNA evidence, is by its very nature prejudicial.

The nature of DNA evidence is such that it is compelling and forceful proof so much so that its tardy production mandates preclusion. The reason for this is that as compelling as DNA is when unchallenged, it is nevertheless refutable if the technical issues involved are properly, adequately and expertly addressed.

The government's failure to timely disclose the results of the DNA evidence constitutes the "trial by ambush" the Second Circuit found reversible in Kelley supra. The district court failed to recognize that the prejudice might be cured by ordering *68 at least a continuance to allow the appellants to retain experts and run their own tests. Following the January 18, 1994, denial of adequate expert funds, trial counsel moved to be relieved. The district court, at this point, should have granted a brief continuance and provided funds for appellant to challenge such compelling evidence. Under the rule of Kelley, this error and conduct mandates a new trial or it gives credence to the disregard for court orders.

POINT V

WHETHER APPELLANT WAS DENIED HIS COUNSEL OF CHOICE AND EFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCE AND WHETHER THE DISTRICT COURT IMPOSED AN IMPROPER SENTENCE

The court passed sentence on all defendants on May 24, 1994. Prior to sentence, the Department of Probation filed a Presentence Investigation Report ("PSI") on April 14, 1994. At the sentencing proceeding, the court addressed Mr. Ramadan who was appearing in Mr. Ahmed's stead as Mr. Ramadan was local counsel for appellant. Mr. Ramadan did not participate in the trial. When asked by the district court whether counsel had any objections to the PSI, he responded that "he was not in a position to advise the court concerning any objections regarding the PSI report since our client does not and has not wished us to represent him for quite awhile." The court then advised counsel that it was not permitting either him or Mr. Ahmed to withdraw as counsel. [Tr.5-8].

*69 The court next addressed this counsel, Jeremy Schneider, Esq., who had been previously appointed as stand by counsel. When asked if Mr. Schneider had objections to the PSI, counsel responded that he was also not in a position to advise the court concerning any such objections in that he had only been assigned as of the evening of May 11, 1994 and had obtained the PSI on May 12, 1994. He further advised the court that in view of the limited time he had to review both the PSI and trial transcript, he was not in a position to "contest, controvert, acquiesce in any of the findings or any of the recommendations."

Counsel further advised the district court that he visited the appellant in Lewisburg on May 17, 1994, and spoke to Mr. Ahmed over the telephone and discussed some issues and requested the trial transcript. When asked directly by the court whether he intended to represent appellant, counsel requested an adjournment so that he could properly prepare for the sentence. The court denied the request. Mr. Schneider then advised the court that he would not represent appellant at sentence. The district court then advised appellant that he could either proceed pro se or with Mr. Ramadan as counsel. Appellant decided to proceed pro se. [Doc.252, 5-8]. The appellant stood before the sentencing court inadequately represented during the sentencing procedure at which he faced and ultimately received a sentence tantamount to life imprisonment.

The application for an adjournment by newly appointed counsel was appropriate. This was especially so in view of the *70 case's magnitude and the fact that counsel had yet to review the extensive file. United States v. Palta, 880 F.2d 636 (2nd Cir. 1989); United States v. Prescott, 920_F. 2d 139 (2nd Cir. 1990); United States v. Sullivan, 694 F.2d 1348 (2nd Cir. 1982) (standing for proposition that adjournment is appropriate where trial transcript is unavailable).

The District Court's obligation to adjourn this sentence is enhanced given the level of trial counsel's performance before the court. Without reiterating prior argument, it should have been clear to the court that new counsel was immediately necessary to assure the constitutional protections afforded all defendants at sentencing. United States v. Daniel, 558 F.2d 122 (2nd Cir. 1977).

The court imposed the exact same sentence on all four appellants without considering the PSI as required under 18 U.S.C. 3553(a). The court's addition of two additional 30 year sentences under counts 9 and 10 was double counting and violative of the Federal Sentencing Guidelines. The court's imposition of a $250,000 fine was also improper in view of the appellant's indigence of which the court was well aware as early as April 1993. The assignment of CJA counsel for sentencing was further indicia of the defendant's indegency. The fine was thus improper. United States v. George Rivera, 971 F.2d 876 (2nd Cir. 1992).

The court's restitution order of $250,000 was also inappropriate in view of appellant's indigence as well as the *71 district court's failure to consider all factors of the defendant's background and abilities as required under 18 U.S.C. 3664. United States v. Tortora, 994 F.2d 79 (2nd Cir. 1993).

Apart from the technical sentencing issues, the district court also denied appellant counsel of his choice at sentencing. After the verdict but prior to the sentecing, appellant moved to dismiss his trial counsel and petitioned the court to appoint the law firm of Kunstler & Kuby ("the Kunstler Firm") to represent him at sentencing. At an April 15, 1994 hearing, the district court denied the application finding the Kunstler Firm's represenation of appellant constituted a conflict. Specifically, the court ruled Mr. Kunstler could not represent individuals who could possibly cooperate against his clients in a related case. (Tr. April 15, 1994, at 3.)

There was no conflict. Appellants repeatedly refused cooperation and ran the trial gambit. The district court's disqualification of the Kunstler on the grounds that he represented multiple defendants in the same matter violates the law. United States v. Curcio, 694 F.2d 14 (2d Cir. 1982). The district court was obligated to conduct a hearing to explore the potential conflict and whether a knowing waiver would cure the problem. This arbitrary decision once again denied the appellant his Sixth Amendment right to Counsel.

*72 POINT VI

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.

*73 CONCLUSION

FOR THE ABOVE STATED REASONS, THE JUDGMENT OF CONVICTION SHOULD BE REVERSED AND THE INDICTMENT DISMISSED, OR A NEW TRIAL ORDERED, OR THE CASE SHOULD BE REMANDED FOR RESENTENCING TO THE DISTRICT COURT.

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