1996 WL 33660772 (2nd Cir.)
For opinion see 152 F.3d 88, 84 F.3d 47
Briefs and Other Related Documents
United States Court of Appeals, Second Circuit.
UNITED STATES OF AMERICA, Appellee, v. Mohammed A. SALAMEH, Nidal
Ayyad, Mahmoud Abouhalima, also known as Mahmoud Abu Halima, Ahmad Mohammed Ajaj,
also known as Khurram Khan, Defendants-Appellants, Ramzi Ahmed Yousef, Bilal
Alkaisi, also known as Bilal Elgisi, Abdul Rahman Yasin, also known as Aboud,
Defendants.
No. 94-1312.
July 23, 1996.
On Appeal from the United States District Court for the Southern District
of New York
Brief for Defendant-Appellant Ahmad Mohammed Ajaj Volume 1:
Statement of Facts
Maranda E. Fritz, Attorney for Defendant-Appellant Ahmad Ajaj,
Fritz & Miller, 565 Fifth Avenue, New York, New York 10017.
*i TABLE OF CONTENTS
ISSUES PRESENTED FOR REVIEW ... 2
STATEMENT PURSUANT TO F.R.App.P. 28(a)(3) ... 4
PRELIMINARY STATEMENT ... 5
STATEMENT OF FACTS ... 10
A. The Government's Release of Ajaj on March 1, 1993 ... And His
Rearrest ... 10
B. The Indictment ... 13
C. The Speedy Commencement of the Trial ... 13
D. The Government's Theory at the Opening of the Trial ... 14
E. The Government's Evidence at Trial ... 16
(1) Ajaj's Departure ... 17
(2) Ajaj's Travels in the Middle East ... 18
(3) Ajaj's Return to the United States ... 23
(4) Ajaj's Luggage ... 26
(5) Ajaj's Telephone Conversation with "Rashed" ... 32
F. The Conduct of the Defense ... 34
G. The Government's Theory in Summation: Ajaj "Sprung"
Yousef ... 47
H. The Charge ... 49
I. The Deliberations ... 52
J. The Sentencing ... 53
K. The New Evidence Developed Since the Verdict ... 54
1. New Evidence Regarding Ajaj's Departure to Pakistan ... 56
*ii i. Ajaj's Work in University Services ... 56
ii. Ajaj's Conflict with Militant Muslims ... 58
iii. Ajaj's Continuing Efforts in the University Services Field in
1992 ... 60
iv. Ajaj's Decision to Travel to Pakistan ... 62
v. The Journey to Pakistan ... 65
2. New Evidence Regarding Ajaj's Activities in Pakistan ... 66
I. Witnesses Regarding Ajaj's University Activities ... 66
ii. Ajaj's Passport ... 68
iii. Yousef's Passport ... 73
iv. Ajaj's Efforts to Return to the United States ... 73
3. New Evidence Regarding Ajaj's Return to the United States ...
76
i. Ajaj's Arrival at Kennedy Airport ... 77
4. New Evidence Regarding The Luggage ... 79
I. New Evidence Regarding Yasin Bazayah ... 80
ii. The Handwriting ... 84
iii. The Letter of Introduction ... 87
5. Ajaj and "Rashed" ... 88
I. Ajaj's Conversations About Rashed ... 90
ii. Ajaj's Conversation with Rashed ... 92
iii. Rashed Fails to Help Ajaj ... 93
6. The "Conspirator's" View of Ajaj ... 94
I. Emad Salem: "No one knows him" ... 94
*iii ii. Siddig Ali: No Knowledge of Ajaj ... 95
iii. Ramzi Yousef, aka, Abdul Basit Balochi ... 97
*iv TABLE OF AUTHORITIES
CASES
Alvarez v. United States, 808 F. Supp. 1066 (S.D.N.Y. 1992) ...
52, 53
Arrowood v. Clusen, 732 F.2d 1364 (7th Cir. 1984) ... 136
Bailiff v. Mannville Forest Products Corp., 772 F. Supp. 1578 (S.D
Miss. 1991) ... 46
Bell v. Coughlin, 820 F Supp. 780 (S.D.N.Y. 1993), affd, 17 F.3d
390 (2d Cir. 1993), cert denied, 114 S. Ct. 2685 (1994) ... 46, 57
Blissett v. Lefevre, 924 F.2d 434 (2d Cir.), cert. denied, 502
U.S. 852 (1991) ... 60
Brown v. United States, 245 F.2d 549 (8th Cir. 1957) ... 49
Busic v. United States, 446 U.S. 1747 (1980) ... 161
Carroll v. Otis Elevator Co., 896 F.2d 210 (7th Cir. 1990) ... 46
Chatom v. White, 858 F.2d 1479 (11th Cir. 1989), cert denied, 489
U.S. 1054 (1989) ... 130
Christophersen v. Allied-Signal Corp., 939 F.2d 1106 (5th Cir.
1991), cert denied, 503 U.S. 912 (1992) ... 46
Coal Reserve v. Gulf & Western Industries, 954 F.2d 1263 (6th
Cir. 1992) ... 46
Code v. Montgomery, 799 F.2d 1481 (11th Cir. 1986) ... 115, 119,
120
Crisp v. Duckworth, 743 F.2d 580 (7th Cir. 1984), cert denied, 469
U.S. 1226 (1985) ... 119
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
... 42, 43
Deluca v. Lord, 77 F.3d 578, 584 (2d Cir. 1996) ... 115, 126
Driscoll v. Delo, 71 F.3d 701 (8th Cir. 1995) ... 130
Fero v. Kerby, 39 F.3d 1462 (10th Cir. 1994), cert. denied, 115 S.
Ct. 2278 (1995) ... 138
Floyd v. Meachum, 907 F.2d 347 (2d Cir 1990) ... 53, 57, 90
*v Francis v. Franklin, 471 U.S. 307 (1985) ... 100
Iacobelli Constr. v. County of Monroe, 32 F.3d 19, 25 (2d Cir.
1994) ... 42
In re Air Crash Disaster at New Orleans, 795 F.2d 1230 (5th Cir. 1986)
... 41
In re Eight Grand Jury Subpoena Duces Tecum, 701 F. Supp. 53
(S.D.N.Y. 1988) ... 50
In re Grand Jury Subpoena Duces Tecum Dated January 2, 1985
(Simels), 767 F.2d 26 (2d Cir. 1985) ... 50
In re Repetitive Stress Injury, 11 F.3d 368 (2d Cir. 1993) ... 169
In re Steinhardt Partners, 9 F.3d 230 (2d Cir. 1993) ... 169
Grooms v. Solem, 923 F.2d 88 (8th Cir. 1991) ... 121
Holland v. United States, 348 U.S. 121 (1954) ... 113
Ingram v. United States, 360 U.S. 672 (1959) ... 99
Lockhart v. Fretwell, 506 U.S. 364 (1993) ... 116
Maddox v. Lord, 818 F.2d 1058 (2d Cir. 1987) ... 118
Mayo v. Henderson, 13 F.3d 528 (2d Cir.), cert. denied, 115 S. Ct.
81 (1994) ... 115
McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974) ... 116
Mejia v. United States, 291 F.2d 198 (9th Cir. 1961) ... 172
Mills v. Scully, 826 F.2d 1192 (2d Cir. 1987) ... 59
Mollica v. United States, 849 F.2d 723 (2d Cir. 1988) ... 15, 100
Moore v. United States, 432 F.2d 730 (3rd Cir. 1970) ... 120
Nealy v. Cabana, 764 F.2d 1173 (5th Cir. 1985) ... 119
Oconner v. Commonwealth Edison Co., 13 F.3d 1090, 1106 (7th Cir.
1994) ... 42
Peteet v. Dow Chemical Co., 868 F.2d 1428 (5th Cir.), cert.
denied, 493 U.S. 435 (1989) ... 41
Pinkerton v. United States, 328 U.S. 640 (1946) ... 31, 99, 103,
104, 105, 107, 135
*vi Sanders v. Sullivan, 863 F.2d 218 (2d Cir. 1988) ... 140
Santobello v. New York, 404 U.S. 257 (1971) ... 146
Sellers v. United States, 574 F. Supp. 767 (W.D.N.C. 1983) ... 116
Simpson v. United States, 435 U.S. 6 (1978) ... 162
State v. Walton, 227 Conn. 32, 630 A.2d 990 (1993) ... 32
Strickland v. Washington, 466 U.S. 668 (1984) ... 115, 116
Thomas v. Fag Bearings Corp., 846 F. Supp. 1382 (W.D. Mo.1994) ...
42
Thomas v. Lockhart, 738 F.2d 304 (8th Cir. 1984) ... 119
Thompson v. Wainwright, 787 F.2d 1447 (11th Cir. 1986),
reh.denied, 792 F.2d 1126 (11th Cir. 1986), cert denied, 481 U.S. 1042 (1987)
... 117, 121
Troedel v. Wainwright, 667 F. Supp. 1456 (S.D.Fla. 1986), affd,
828 F.2d 670 (11th Cir. 1987) ... 54, 117
U.S. v. Garland, 991 F.2d 328 (6th Cir. 1993) ... 169
United State v. Lewis, 954 F.2d 1386 (7th Cir. 1992) ... 46
United States ex rel Cosey v. Wolff, 562 F. Supp. 140 (N.D.Ill.
1983), affd, 727 F.2d 656 (7th Cir. 1984) ... 120
United States ex rel. Welch v. Lane, 738 F.2d 863 (7th Cir. 1984)
... 150
United States v. Agueci, 310 F.2d 817 (2d Cir. 1962), cert.
denied, 372 U.S. 959 (1963) ... 35
United States v. Alba, 933 F.2d 1117 (2nd Cir. 1991) ... 160
United States v. Alessi, 544 F.2d 1139 (2d Cir. 1976), cert.
denied, 429 U.S. 960 (1976) ... 147
United States v. Alessi, 638 F.2d 466 (2d Cir. 1980) ... 171
United States v. Alexander, 860 F.2d 508 (2d Cir. 1988) ... 151
United States v. Annabi, 771 F.2d 670 (2d Cir. 1985) ... 146
*vii United States v. Aracri, 968 F.2d 1512 (2d Cir. 1992) ... 102
United States v. Atehortva, 17 F.3d 546 (2d Cir. 1994), cert.
denied, 135 L. Ed. 1991, 1996 U.S.Lexis 3813 (1996) ... 6
United States v. Baynes, 687 F.2d 659 (3rd Cir. 1982) ... 117, 127
United States v. Birbal, 62 F.3d 456 (2d Cir. 1995) ... 95
United States v. Boothe, 994 F.2d 63 (2d Cir. 1993) ... 53
United States v. Borelli, 336 F.2d 376m (2d Cir. 1964), cert.
denied, Cinquegrano v. United States, 379 U.S. 960 (1965) ... 9, 32, 35, 109,
132, 141
United States v. Brisco, 473 F. Supp. 303 (D.Del. 1979), affd, 615
F.2d 1354 (3rd Cir.), cert denied, 446 U.S. 922 (1980) ... 52
United States v. Brown, 1995 U.S.Dist.Lexis 5334 (S.D.N.Y. 1995)
... 36, 133, 134
United States v. Campbell, 704 F. Supp. 661 (E.D.Va. 1989) ... 158
United States v. Cantone, 426 F.2d 902 (2d Cir.), cert. denied,
400 U.S. 827 (1970) ... 104
United States v. Carr, 965 F.2d 408 (7th Cir. 1992) ... 46
United States v. Castellano, 610 F. Supp. 1359 (S.D.N.Y. 1985) ...
36, 132, 134, 141
United States v. Chalan, 812 F.2d 1012 (10th Cir. 1987), cert.
denied, 488 U.S. 983 (1988) ... 165
United States v. Clark, 475 F.2d 240 (2d Cir. 1973) ... 94, 100, 112
United States v. Cohen, 516 F.2d 158 (8th Cir. 1975) ... 109
United States v. Concepcion, 983 F.2d 369 (2nd Cir. 1992), reh.
denied, 983 F.2d 369 (2d Cir. 1993) ... 158
United States v. Corr, 543 F.2d 1042 (2d Cir. 1976) ... 32
United States v. Correa-Vargas, 860 F.2d 35 (2d Cir. 1988) ... 155
United States v. Cruz, 797 F.2d 90 (2d Cir. 1986) ... 132
United States v. Dardi, 330 F.2d 316 (2d Cir.), cert. denied, 379
U.S. 845 (1964) ... 50
*viii United States v. Debango, 780 F.2d 81 (D.C.Cir. 1986) ...
120
United States v. Decoster, 624 F.2d 196 (D.C.Cir. 1976) ... 117
United States v. Della Universita, 298 F.2d 365 (2d Cir.) cert.
denied, 370 U.S. 950 (1962) ... 53, 60
United States v. Diaz, 922 F.2d 998 (2d Cir. 1990), cert. denied,
500 U.S. 925 (1991) ... 170
United States v. Dove, 916 F.2d 41 (2d Cir. 1990) ... 94, 112
United States v. Duckett, 550 F.2d 1027 (5th Cir. 1977) ... 5, 10
United States v. Duke, 423 F.2d 387 (5th Cir. 1970) ... 14
United States v. Durham, 825 F.2d 716 (2d Cir. 1987) ... 94, 108
United States v. Dyar, 574 F.2d 1385 (5th Cir.), cert. denied, 439
U.S. 982 (1978) ... 12
United States v. Escobar, 842 F. Supp. 1519 (E.D.N Y. 1994) ...
35, 109, 132, 141
United States v. Espinal, 981 F.2d 664 (2d Cir. 1992) ... 53, 60
United States v. Espinosa-Hemandez, 918 F.2d 911 (11th Cir. 1990)
... 160
United States v. Fields, 466 F.2d 119 (2d Cir. 1972) ... 100
United States v. Frequency Electronics, 862 F. Supp. 834 (E.D.N.Y.
1994) ... 97, 102
United States v. Friedman, 909 F.2d 705 (2d Cir. 1990) ... 6, 53,
59, 88
United States v. Gallerani, 68 F.3d 611 (2d Cir. 1993) ... 5, 6,
98
United States v. Gallishaw, 428 F.2d 760 (2d Cir. 1970) ... 8, 99
United States v. Gavaria, 740 F.2d 174 (2d Cir. 1984) ... 23
United States v. Gilbert, 668 F.2d 94 (2nd Cir. 1981), cert.
denied, 456 U.S. 946 (1982) ... 170
United States v. Gillilan, 288 F.2d 796 (2d Cir. 1961) ... 100
United States v. Gleason, 616 F.2d 2 (2d Cir. 1979), cert. denied,
444 U.S. 1082 (1980) ... 9
*ix United States v. Goff, 847 F.2d 149 (5th Cir.), cert. denied,
488 U.S. 932 (1988) ... 36
United States v. Gray, 878 F.2d 702 (3rd Cir. 1989) ... 118
United States v. Greenfield, 44 F.3d 1141, 1150 (2d Cir. 1995) ...
34
United States v. Helmsley, 985 F.2d 1202 (2d Cir. 1993) ... 56
United States v. Icardi, 140 F. Supp. 383 (D.D.C. 1956) ... 49
United States v. Johnson, 513 F.2d 819 (2d Cir. 1975) ... 23
United States v. Johnson, 582 F.2d 1186 (8th Cir 1978) ... 118
United States v. Jones, 30 F.3d 276, 282 (2d Cir. 1994) ... 5
United States v. Joyner, 924 F.2d 454 (2d Cir. 1991) ... 159
United States v. Kearse, 444 F.2d 62 (2 Cir. 1972) ... 24
United States v. Kelly, 420 F.2d 26 (2d Cir. 1969) ... 59
United States v. Kelly, 790 F.2d 130 (D.C.Cir. 1986) ... 59, 168
United States v. Kladouris, 739 F. Supp. 1221 (N.D.Ill. 1990) ...
116
United States v. LaMorte, 950 F.2d 80 (2d Cir. 1991), cert. denied,
504 U.S. 909 (1992) ... 108
United States v. Labat, 905 F.2d 18 (2d Cir. 1990) ... 5, 39
United States v. Laskow, 688 F. Supp. 851 (E.D.N.Y 1988), affd,
867 F.2d 1425 (2d Cir. 1988) ... 146, 147
United States v. Lindsay, 985 F.2d 666 (2d Cir. 1993), cert.
denied, 510 U.S. 832 (1993) ... 161
United States v. Liranzo, 944 F.2d 73 (2d Cir. 1991) ... 146
United States v. Locascio, 6 F.3d 924 (2d Cir. 1993), cert denied,
114 S. Ct. 1645 (1994) ... 95, 170
United States v. Locasio, 6 F.3d 924 (2d Cir. 1993), cert. denied,
114 S. Ct. 1646 (1994) ... 32
*x United States v. Martino, 664 F.2d 860 (2d Cir. 1981), cert.
denied, 368 U.S. 821 (1961) ... 98
United States v. Matos, 781 F. Supp. 273 (S.D.N.Y. 1992) ... 169,
171
United States v. Matos, 905 F.2d 30 (2d Cir. 1990) ... 114, 115
United States v. McConney, 329 F.2d 467 (2 Cir. 1964) ... 24
United States v. McIntyre, 836 F.2d 467 (10th Cir. 1987) ... 14
United States v. Monk, 15 F.3d 29 (2nd Cir. 1994) ... 158
United States v. Narciso, 446 F. Supp. 252 (E.D.Mich. 1976) ...
142
United States v. Nerlinger, 862 F.2d 967 (2d Cir. 1988) ... 34,
110
United States v. Newman, 490 F.2d 139 (3rd Cir. 1974) ... 52, 57
United States v. Nusraty, 867 F.2d 759 (2d Cir. 1989) ... 6, 9, 97
United States v. Olano, 113 S. Ct. 17 (1993) ... 95, 96
United States v. Padilla, 961 F.2d 322 (2d Cir.), cert. denied,
506 U.S. 846 (1989) ... 39
United States v. Palta, 880 F.2d 636 (2d Cir. 1989) ... 150
United States v. Panebianco, 543 F.2d 447 (2d Cir. 1976) ... 35,
109, 133
United States v. Papa, 533 F.2d 815 (2d Cir.), cert. denied, 429
U.S. 961 (1976) ... 147
United States v. Parker, 997 F.2d 219 (6th Cir. 1993) ... 138
United States v. Pavloyianis, 996 F.2d 1467 (2d Cir. 1993) ... 57
United States v. Pelletier, 898 F.2d 297 (2d Cir. 1990) ... 146
United States v. Persico, 305 F.2d 534 (2d Cir. 1962) ... 58
United States v. Pipich, 688 F. Supp. 191 (D.Md. 1988) ... 158
United States v. Prescott, 920 F.2d 139 (2d Cir. 1990) ... 150
United States v. Provenzano, 615 F.2d 37 (2d Cir. 1980) ... 7, 9,
33, 97
*xi United States v. Recognition Equipment Inc., 711 F. Supp. 1
(D.D.C. 1989) ... 102
United States v. Restrepo, 936 F.2d 661 (2nd Cir. 1991) ... 156,
159
United States v. Rosenblatt, 554 F.2d 36 (2d Cir. 1977) ... 5, 6,
7, 16, 33, 97
United States v. Roshko, 969 F.2d 1 (2d Cir. 1992) ... 5, 98, 100
United States v. Russo, 74 F.3d 1383 (2d Cir. 1996) ... 58
United States v. Ryan, 868 F.2d 604 (3d Cir. 1989) ... 158
United States v. Sanchez, 969 F.2d 1409 (2d Cir. 1992) ... 57, 169
United States v. Schilleci, 545 F.2d 519 (5th Cir. 1977) ... 96
United States v. Seijo, 524 F.2d 1357 (2d Cir. 1975) ... 57
United States v. Siddiqi, 959 F.2d 1167 (2d Cir. 1992) ... 170,
172
United States v. Soto, 716 F.2d 989 (2d Cir. 1983) ... 98
United States v. Spencer, 4 F.3d 115 (2nd Cir. 1993) ... 170
United States v. Sperling, 506 F.2d 1323 (2d Cir. 1974), cert.
denied, 420 U.S. 962 (1975) ... 103
United States v. Starzecpyzei, 880 F. Supp. 1027 (S.D.N.Y. 1995)
... 42
United States v. Stavroulakis, 952 F.2d 686 (2d Cir.), cert.
denied, 504 U.S. 926 (1992) ... 6, 96
United States v. Sullivan, 694 F.2d 1348 (2d Cir. 1982) ... 150
United States v. Tarricone, 996 F.2d 1414 (2d Cir. 1993), appeal
after remand, 21 F.3d 474 (2d Cir. 1993) ... 54, 115, 126
United States v. Teffera, 985 F.2d 1082 (D.C.Cir. 1993) ... 23, 60
United States v. Terry, 702 F.2d 299 (2d Cir.), cert. denied, 461
U.S. 931 (1983) ... 14, 25
United States v. Underwood, 932 F.2d 1049 (2d Cir.), cert denied,
502 U.S. 942 (1991) ... 170
United States v. United States Gypsum Co., 438 U.S. 422 (1978) ...
109
*xii United States v. Urrego, 853 F. Supp. 646 (E.D.N.Y. 1994) ...
31, 36, 82, 104, 107, 133, 134
United States v. Valentine, 820 F.2d 565 (2d Cir. 1987) ... 53, 60
United States v. Vebeliunas, 76 F.3d 1283 (2d Cir. 1996) ... 15
United States v. Villegas, 899 F.2d 1324 (2d Cir.), cert denied,
498 U.S. 991 (1990) ... 5
United States v. Viola, 35 F.3d 37 (2d Cir. 1994) ... 13
United States v. Wallach, 935 F.2d 445 (2d Cir. 1991) ... 53, 55
United States v. Wardy, 777 F.2d 101 (2d Cir. 1985), cert. denied,
475 U.S. 1053 (1986) ... 97
United States v. Welch, 945 F.2d 1378 (7th Cir. 1991), cert
denied, 502 U.S. 1118 (1992) ... 46, 47, 150
United States v. Williams, 504 U.S. 36 (1992) ... 92
United States v. Winans, 612 F. Supp. 827 (S.D.N.Y. 1985), affd in
part & revd in part, 791 F.2d 1024 (2d Cir. 1986), cert. granted, 479 U.S.
1016 (1986), affd, 484 U.S. 19 (1987) ... 6, 97
United States v. Young, 470 U.S. 1, 105 S. Ct. 1038, 84 L. Ed. 2d
1 (1985) ... 59
Wanke v. Lynns Transport Co., 836 F. Supp. 587 (N.D. Ind. 1993)
... 46
STATUTES AND RULES
18 U.S.C. 2 ... 162
18 U.S.C. 111 ... 160-161
18 U.S.C. 371 ... 7
18 U.S.C. 844 et. seq. ... 15, 162-164
18 U.S.C. 924 ... 160-161
Fed. R.App. Pro ... 196
Fed. R. Cr. Pro. 8 ... 102 n. 34
*xiii Fed. R. Cr. Pro 33 ... 168-172
Fed. R. Cr. Pro. 52 ... 95
Fed. R. Evid. 702 ... 41, 42, 43
Fed. R. Evid. 901 ... 48
Fed. R. Evid. 902 ... 48
A.B.A.Standard 4.7.8 ... 60
A.B.A.Standards 4.4.1 ... 117
MISCELLANEOUS
Green, Expert Witnesses and Sufficiency of Evidence in Toxic
Substance Litigation, 86 Nw. U.L. Rev. 643 (1992) ... 44
Modem Federal Jury Instructions ... 108 n. 36
*2 ISSUES PRESENTED FOR REVIEW
1. Whether the convictions of Ahmad Ajaj must be reversed because
the Government failed to present sufficient evidence that Ajaj agreed to and
participated in the charged conspiracy and because the evidence established
that Ajaj's incarceration and subsequent conduct constituted a withdrawal from
and abandonment of any conspiracy?
2. Whether the convictions must be reversed because the Government
elicited at length opinion testimony from a fingerprint expert regarding
"placement" of fingerprints, and then argued to the jury that this
expert's testimony proved that Ajaj himself wrote a manual on bombmaking,
although there exists no scientific basis for these assertions.
3. Whether the convictions must be reversed where the Government,
as the cornerstone of a thin circumstantial case against Ajaj, relied on
evidence and a series of arguments which are demonstably false?
4. Whether trial counsel, who was provided with only three months
from his appointment to the commencement of trial, was unable to and failed to
render ineffective assistance to the appellant by failing to conduct a
pre-trial investigation, by failing to utilize available evidence, by failing
to retain a handwriting or fingerprint expert, and by failing to present to the
trial court the critical legal authorities on the issues of sufficiency of the
evidence and the jury charge?
5. Whether the trial court erred in its charge to the jury,
including its failure to instruct the jury that it was required to find that
Ajaj agreed to an essential plan or common goal, its erroneous inclusion of a
Pinkerton charge, and its failure to offer any instruction to the jury on the
issues of withdrawal from and abandonment of a conspiracy?
*3 6. Whether the cumulative effect of the timing of the trial and
of discovery, the Government's persistent reliance on false evidence and
argument, the court's improper evidentiary rulings, the trial counsel's
inability or failure to respond to critical factual and legal issues and
errors, and the trial court's errors in its charge to the jury, taken as a
whole, render this verdict a violation of due process?
7. Whether the prosecution of Ajaj was barred by double jeopardy
based on his prior prosecution in the Eastern District of New York and the
terms of the plea agreement in that case?
8. Whether the trial court erred in sentencing the defendants
without their counsel of choice, without permitting newly appointed appellate
counsel any meaningful opportunity to prepare or respond, and in imposing a
sentence of imprisonment which contravenes the language and intent of the
Sentencing Guidelines?
9. Whether the district court erred in its decision, and abused
his discretion, in denying the motion for a new trial, without benefit of
discovery or a hearing, based solely on the perfunctory assertion that the
hundreds of pages of exhibits, statements of witnesses, expert reports and
documents failed to include any item of evidence which was "new."
*4 STATEMENT PURSUANT TO F.R.App.P. 28(a)(3)
Ahmad Ajaj appeals from judgments of conviction entered, and
sentences imposed, on May 24, 1994, in the United States District Court for the
Southern District of New York (Duffy, Kevin T., J.). The convictions were based
on guilty verdicts entered by a jury, on March 4, 1994 under 10 counts of an
Indictment filed in August, 1993 (Appendix: Indictment). [FN1]
FN1.
Appellant's Appendix will be cited as "App. __." The portions of the
trial record not included in the Appendix will be cited as "T.__."
Ahmad Ajaj was convicted of conspiracy in violation of 18 U.S.C.
371 (Count One), explosive destruction of property in violation of 18 U.S.C.
844 (Counts Two & Three), interstate transportation of explosives in
violation of 18 U.S.C. 844 (Count Four), destruction of motor vehicles in
violation of 18 U.S.C. 33, 34 and 2 (Counts Five & Six), travel in interstate
commerce with intent to commit crimes of violence in violation of 18 U.S.C.
1952 and 2 (Count 7), assault on a federal officer (Count 8), and use or
carrying of a destructive weapon (Counts 9 & 10).
On May 24, 1994, Ajaj was sentenced to a term of 180 years in
prison on Counts 1 through 8 and 30 years in prison on each of counts 9 &
10, sentences to run concurrently. In addition, restitution of $250 million was
imposed.
Notice of Appeal was filed on or before June 1, 1994. The
jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1291 and Rules 3
and 4(b) of the Federal Rules of Appellate Procedure.
*5 PRELIMINARY STATEMENT
Ahmad Ajaj stands convicted and sentenced to 240 years for the
bombing of the World Trade Center, yet his circumstances are both remarkable
and compelling in at least two respects. First, he was actually in prison for
the entire six month period prior to and including the date of the bombing,
with all calls and contacts monitored, and no demonstrable involvement in any
plan to engage in any terrorist act. This fact alone pervades every aspect of
the case against him, from the inherent weakness of the Government's proof, to
the Government's willingness to press beyond reliable evidence, to the
Government's shifting theories and its reliance on consistently inaccurate
assertions, and, finally, to the severe impact of the District Court's failure
to properly instruct the jury on the pivotal issues relating to Ajaj.
Second, it is now clear that the Government's case against Ajaj at
trial, and the jury verdict, were grounded on evidence and assertions which
were demonstrably false -- not merely misinterpreted or unreliable but, in
critical respects, actually false. Perhaps because of the scarcity of any
direct evidence relating to Ajaj, the Government was compelled to seize on
isolated shreds of information to construct an elaborate theory of Ajaj's
supposed recruitment and terrorist training. The evidence relied upon in
support of these theories, however, and the arguments that they presented to
the jury, were simply false. By way of example, the Government's case hinged on
a few damning assertions, each of which has been proven to be false: the
Government told the jury that Ajaj actually wrote a manual on bombmaking which
proved that he had taken a "course on explosives;" in fact,
handwriting experts have confirmed that Ajaj is not the author of that manual.
The Government introduced into *6 evidence the passport of Ajaj and claimed
that the stamps in the passport proved that Ajaj traveled to Saudi Arabia to
obtain a letter of introduction to a terrorist training camp; in tact, the
evidence has now established that the stamps in the passport are not authentic
and constitute evidence of nothing. The Government insisted that Ajaj was
inexplicably able to afford a first class airline ticket back to the United
States, and sought to have the jury infer that this demonstrated his
association to some financed terrorist network; in fact, the Government had in
its possession the evidence which established that Ajaj had sought and received
the money for that ticket from his oldest friend in Texas. The Government
claimed that Ajaj's guilt was demonstrated by the fact that his luggage
contained military manuals; in fact, the evidence plainly demonstrated that
Ajaj was transporting the personal effects of others including a trained
soldier who died in the fighting in Afghanistan. Further, and as a part of its
continuously shifting theory of Ajaj's liability, the Government claimed that
Ajaj was responsible for the World Trade Center bombing because he supposedly
facilitated Ramzi Yousefs entry at Kennedy Airport in September 1992; in fact,
the Government's own witnesses have now made clear that Ajaj had nothing to do
with Yousef's entry into this country. Finally, the Government claimed that
Ajaj, after his arrest, made efforts to transfer the seized luggage, with the
military manuals, to Yousef; in fact, the Government was fully aware that Ajaj
not only refused to allow Yousef to receive those materials but instead
actually directed that the luggage be sent across the country to his own
attorney in Houston, Texas.
These constitute only a few examples of the misstatements that
formed the basis for the jury's verdict in this case. As detailed below,
virtually every aspect of the Government's proof and argument relating to Ajaj
have ultimately been proven false.
*7 The errors in this case, however, go beyond the
misrepresentations which permeated the Government's case The falsity of the
Government's evidence was actually facilitated and compounded by critical and
reversible errors throughout these proceedings. First, the abject failure of
the defense to counter the Government's misrepresentations was, in large part,
a result of the speed with which this case was brought to trial. The District
Court actually provided trial counsel with only two and a half months from his
first meeting with the client to the commencement of trial -- in a case which
could effectively be defended only through meticulous examination and a full
understanding of hundreds of documents and transcripts and an investigation
spanning the United States and the Middle East.
At the same time, the Government was permitted to engage in
egregious delays in discovery, with the Government's translations of critical
documents and conversations being provided literally three to four months into
the Government's case. As a result, Ajaj's trial counsel actually delivered his
opening statement in this case with only a limited knowledge of the content of
the documents and phone conversations, and without ever being told by the
Government that there was a recorded conversation between Ajaj and Ramzi Yousef
-- a conversation which ultimately served as the focus of the Government's
argument as to Ajaj's continued participation in the purported conspiracy.
Given these circumstances, the defense stood unable to gather and present the
evidence which flatly refutes the Government's contentions.
The final flaw in these proceedings -- which in and of itself
prevented the defendant from receiving a fair trial -- consisted of the Court's
evidentiary rulings and its fundamentally flawed instructions to the jury. As
demonstrated below, the issue of Ajaj's guilt *8 turned on three legal issues:
his knowledge of and participation in an conspiracy, his apparent withdrawal
from the conspiracy, and the use of circumstantial evidence. As to the first
two issues, the Court's instructions were either inadequate or inappropriate.
With respect to the question of Ajaj's incarceration and arguable withdrawal
from the conspiracy, the Court failed even to mention the issue to the jury.
These circumstances, from the appointment of counsel through the
charge to the jury, resulted in a thoroughly flawed, unreliable and
insupportable verdict. Beginning with the rush to trial and the delays in
discovery, continuing through the Government's reliance on demonstrably false evidence
and argument, the presentation of the defense, and the conduct of the trial
court, the plain fact is that the information provided to the jury bears little
or no relation to the actual facts and legal principles which should have
served as the basis for a verdict. Whether viewed singly or in combination,
these errors require the grant of a new trial.
The final compelling aspect of Ajaj's case concerns the evidence
which has been gathered since the trial -- evidence which not only refutes the
Government's arguments but also provides persuasive support for the position
that Ajaj had nothing to do with any terrorist conspiracy. Among these items of
new evidence are testimony and documents establishing Ajaj's background in
student services, the purpose of his trip to Pakistan, and the actual
circumstances leading to his departure. More importantly, witnesses have now
been located in Jordan, and have provided statements explaining that the
military manuals in Ajaj's luggage, including the infamous "blue books,"
were actually the property of their relative, Yasin Bazayah, who died in the
fighting in Afghanistan in August 1992, and whose belongings were *9 to be
forwarded by Ajaj to his family. This evidence, particularly when coupled with
the errors of the trial, demonstrates that the verdict against Ajaj cannot
stand.
*10 STATEMENT OF FACTS
A. The Government's Release of Ajaj on March 1, 1993 ... And His
Rearrest
As of the spring of 1992, Ajaj was living in Houston, Texas,
working as a jewelry salesman for his uncles and, part time, as a delivery man
(T. Gollub 1973-80; Colloquy 2054-56; Baldomero 2172-90; Obaid 2201-07). He
had, since his arrival in the United States the prior year, been pursuing his
application for political asylum (T. Gollub 1973-80). He had also been making
efforts to gain more meaningful employment by reestablishing the business that
he had been involved in for many years -- assisting Muslim students with
university placements. [FN2]
FN2. The
evidence that this had been Ajaj's line of work for many years is plain: it is
the occupation listed on his passport (T. 7516), it is the subject of the
telephone calls and correspondence which have been gathered
in this
case infra at 56-58, it has even been verified through the investigation of The
New York Times.
Ajaj then left Texas in April of 1992 to travel to Pakistan, an
area replete with universities which are suited to and affordable to Muslim
students (T.Obaid 2206-08; T. Martire 2271-90 and G.Ex.s 598, 599). He was,
however, still in the midst of his application for political asylum. By July of
1992, he had realized that, because of his pending asylum application, his
failure to obtain authorization for travel would cause him difficulty on his
return. As a result, he visited the United States Embassy in Islamabad and
sough. their assistance in obtaining documents for his return to the United
States. According to the individual who met with Ajaj at the embassy, Karen
Stanton, she informed Ajaj that he would have to travel to New Delhi to resolve
his problem (T. 2304-20). He was apparently unable or unwilling to make the
dangerous journey to Delhi because, on his return to the *11 United States on
September 1, 1992, Ajaj tried to gain entry by using a false passport (T Cozine
2450-67). The passport was so crudely altered that he was almost immediately
stopped and was ultimately arrested for his use of the false passport (T.
Cozine 2460 67).
From that date in September 1992 until March 1, 1993, Ajaj
remained incarcerated in federal facilities with all communications and
visitors monitored. Three days after the bombing, on March 1, 1993, Ajaj was
released from Raybrook and, as instructed, reported directly to his probation
officer, George Gonzalez, in Brooklyn Ajaj explained to Mr. Gonzalez that his
only family was in Texas and sought approval to return there (T 8254 56). When
he learned that the authorization would take some time, Ajaj told Mr. Gonzalez
that he knew no one and had nowhere to stay in the New York area. Mr. Gonzalez
then tried to arrange for Ajaj to stay at a mosque in Brooklyn, writing a
letter to the mosque requesting that "you please allow Mr. Ajaj to reside
at the mosque until Monday, March 8, 1993. This office is currently making
arrangements for Mr. Ajaj to relocate to Texas ASAP." (Appendix: Exhibit
to Affidavit of Maranda E. Fritz in Support of Motion for a New Trial
(hereinafter cited as "FritzAff.") Ex. 1 Letter from George Gonzalez,
Match 5, 1993.)
In the days following his release from prison, Ajaj appeared daily
at the office of the Department of Probation to await the approval for his
return to Texas. On March 9, 1993, however, while in Mr. Gonzalez's office,
Ajaj was taken into custody, where he has remained ever since (T. 8256-60).
During the months following this arrest, Ajaj was approached a number of times
to provide information regarding the individuals associated with the World
Trade Center bombing. On April 5 or 6, 1993, Ajaj was interrogated by an FPI
agent, an INS agent and an agent from the State Department, seeking information
about the *12 World Trade Center explosion (App: Fritz Aff. Ex2: Affidavit of
Austin Campriello, dated July 12, 1993 at 34-35; Ex. 3 Affidavit of Lynne
Stewart, dated May 4, 1993). These agents offered Ajaj political asylum or free
passage to the country of his choice for any information. Ajaj told them that
he had no information to provide. Id.
Two days after this interview, on April 8, 1993, Ajaj was suddenly
moved from the INS facility on Varick Street to the maximum security facility
at the Metropolitan Correctional Center (App. Ex 4. Fritz Aff. Notice of
Action, 4/8/93 ("Transferred for security purposes: criminal
investigation); Ex 5: Intake Questionnaire, 4/8/93 ("Name of Court Case:
WT Center bombing"); Ex 6: Administrative Detention Order ("Inmate is
being placed into Administrative Detention due to high security as being a
suspect in the World Trade Center bombing"). [FN3]
FN3.
Throughout this period, however, the government continued to take the position
that Ajaj was not a suspect in the World Trade Center bombing. On April 27,
1993, in response to a specific request from Ajaj for an explanation of the
reason for his detention at MCC, Ms. Dominique Raia stated that he was being
held as "an INS inmate, originally detained pending deportation
hearings" (App.Fritz Aff Ex 7: Inmate Request). As of April 28, 1993,
Assistant United States Attorney Gil Childers told Daniel Arshack, Esq., an
attorney for Ajaj, that Ajaj was not a suspect in the
bombing
or a target of the grand jury, but that the FBI wanted to speak with him (App.
Fritz Aff. Ex. 2: Campriello Affidavit at 36; Ex. 3: Stewart Affidavit). And on
or about May 6, 1993, a Special Housing Form at the MCC recommended Ajaj's
release to general population based on the fact that the "inmate has not
been charged in the W.T.C. bombing case nor has he been associated with the
case by the media" (App. Fritz Aff. Ex. 8: Special Housing Form.)
Then, on May 6, 1993, approximately one month after Ajaj rebuffed
the Government's repeated attempts to procure information from him and rejected
offers of lenient treatment and release, he was actually charged in the World
Trade Center bombing case.
*13 B. The Indictment
The final version of the Indictment in this case, filed in August
1993, [FN4] charged Ajaj with nine counts relating to the World Trade Center
bombing as well as a Travel Act count based on his arrival at Kennedy Airport.
The First Count of the Indictment charged all defendants with a conspiracy,
beginning in April 1992. "to commit offenses against the United States, to
wit, to violate sections 844(i), 844(f), 844(d) and 33 of Title 18, United
States Code." The overt acts of the conspiracy charge, and the allegations
of the referenced substantive counts, refer specifically to the World Trade
Center bombing. The only overt acts listed in the conspiracy count, with
respect to Ahmad Ajaj, consisted of his travel to the United States, and his possession
of military manuals (Count One paragraphs (6) (a) and (b)).
FN4. The
initial indictment was filed in March of 1993. Superseding indictments were
filed in April, May and August. Notably, the Indictment filed in May actually
timed the conspiracy from August of 1992 -- only weeks before Ajaj's arrest.
C. The Speedy Commencement of the Trial
At the time that Ajaj was charged with the World Trade Center
bombing, in May of 1993, he was represented by attorneys David Weiss and Lynne
Stewart. As of June 10, 1993, the District Court announced at a conference that
it would not appoint Mr. Weiss as counsel under the Criminal Justice Act (App.
Transcript of Proceedings of June 10, 1993 at 2). After the court then observed
that "Mr. Ajaj has no counsel," Lynne Stewart stated on the record
that she and Daniel Arshack were prepared to represent Ajaj pro bono so long as
their expenses could be paid through CJA. The Court stated that he would not
permit Ms. Stewart to represent Ajaj under those circumstances. Ajaj himself
then addressed the Court, asking *14 again that the Court permit Ms. Stewart to
represent him -- without payment for her time and with only expenses paid
through the CJA panel. The Court again refused (App. Transcript of June 10,
1993).
Approximately two weeks later, on or about June 21, 1993, trial
counsel was appointed to represent Ajaj. Only three weeks later, on or about
July 12th, trial counsel filed pre-trial motions. On or about September 3,
1993, only 10 days before the trial began, the defense then submitted extensive
reply papers. Thus, it was during this brief period that trial counsel first
met the client, made efforts to begin to actually communicate with the client,
researched and briefed any and all legal arguments, and tried to gain some
understanding regarding the complex evidence in and circumstances of the case.
Less than three months after trial counsel's first meeting with
the client, on September 14, 1993, the case proceeded to trial. As of that
date, the defense had had only one opportunity to actually view the materials
seized from Ajaj's luggage and had wholly inadequate information regarding the
content and translations of those materials or his client's recorded telephone
conversations - almost all of which were in Arabic (infra at 34-35). Further,
trial counsel had not conducted any investigation relating to his client's
background, activities in Pakistan or Ajaj's possession of the military
materials. Nevertheless, the trial began.
D. The Government's Theory at the Opening of the Trial
In the opening statement on October 4, 1993, the Government
presented to the jury the theory of the culpability of Ahmad Ajaj. The
Government's position on Ajaj's role was precise and emphatic: according to
AUSA Childers, it was "Ahmad Ajaj who brought the *15 formula to make
explosive materials that was the bomb into this country when he entered this
country last September." After having been immersed in the facts of the
Trade Center bombing from February through October, AUSA Childers told the
jury, over and over again, that the role of "defendant Ahmad Ajaj, in
conjunction with Ramzi Yousef, was to supply essentially the recipe, the
know-how, the expertise that was needed to carry out this terrorist
conspiracy" (T. 32; see also T. 21-22, 24).
As he concluded his opening, AUSA Childers again described to the
jury Ajaj's alleged "vital role in this conspiracy" and the purported
reason that he too, notwithstanding the fact that he was incarcerated for the
six months leading up to the bombing, was responsible for it.
It was Ajaj who was in possession of various manuals containing
the ingredients and the recipes for creating explosives of all kinds, including
nitroglycerin, and including a very rare high explosive compound that I've
mentioned several times already this morning.... It was Ajaj who had with him
not just these manuals on bomb-making and other terrorist activities but also
audio cassettes and video cassettes, video cassettes instructional in nature on
how to make bombs how to construct bombs from raw chemicals, and how to carry
out bombings, manuals on how to carry out terrorist missions against Americans,
and manuals, as I said, that contained the recipe and step-by-step procedures
to create urea nitrate, manuals that are just full of that defendant's
fingerprints, Ahmad Ajaj's, manuals that are just full of the fingerprints of
Ramzi Yousef, his travel companion on September 1, 1992. And in particular, one
of those manuals, on the page that contains the recipe or the formula for urea
nitrate, had the fingerprint of Ahmad Ajaj.
(T. 33-34). [FN5]
FN5.
Trial counsel for Ajaj in fact emphasized and relied on the Govnerment's
description of the role of Ajaj. In fact, he stated in his opening argument
that "you will notice in listening to the Government's opening, that was
his only role. His only role was to bring in the formula, the formula that
never made it past customs" (T. 82).
*16 AUSA Childers -- the man perhaps most intimately familiar with
the entire wealth of the information in the possession of the Government --
could not have been clearer that the Government viewed Ajaj as responsible for
the bombing based upon his possession of the manuals.
E. The Government's Evidence at Trial
The evidence actually presented by the Government against Ahmad
Ajaj at trial failed to support the notion that Ajaj was the explosives expert
in any conspiracy. Rather, the Government eventually had to acknowledge that
the materials in Ajaj's possession included not one word regarding any planned
terrorist conspiracy and contained no unique or essential information; plainly,
the World Trade Center bombing was committed without need of or use of those
materials. The credible evidence with respect to Ajaj established no more than
the facts of his trip to Pakistan and his return -- on the same flight with
Yousef -- with baggage that plainly contained the belongings of others.
Plainly unwilling to rely on the circumstances of Ajaj's return
from Pakistan as their only evidence, the Government reached well beyond these
actual facts and sought to construct an elaborate, but ultimately illogical and
inaccurate, theory of terrorist recruitment and training. The Government did
this by taking isolated bits of information, either failing to undertake any
investigation of the information -- or ignoring it -- and instead simply
attaching the most damning misinterpretation to it.
*17 These assertions of the Government relating to Ajaj ultimately
fell into five categories: (1) his departure from the US; (2) his passport and
supposed travels from April through August of 1992; (3) his return to the US;
(4) his luggage; and (5) his phone calls.
(1) Ajaj's Departure
Vincent Martire, the agent in charge of city ticket offices for
TWA, was called to testify regarding airline reservations made during the
period April 18 through April 24, 1992 (T. 2269-83). This evidence established
nothing more than that there were reservations in the name of Suleman and Abid,
with Ajaj at one point added and Abid canceled. Notably, Ajaj's use of his own
name in making reservations contradicts any notion of concealment of his travel
plans.
Omar Obaid, a friend of Ajaj's from Houston, Texas, went on to
testify that he drove Ajaj and another man, Abraham Suleman, to the airport in
April of 1992 (T. 2238-39). Ajaj left his car with Omar and left in the car his
papers and other belongings. While the Government attempted to suggest that
Ajaj had tried to conceal his destination from Obaid, Obaid actually testified
that Ajaj told him to send mail to an address in Peshawer, Pakistan (T.
2201-2219; 2221-22).
Shafqat Durrani, an employee of Pakistan International Airways,
confirmed that Ajaj traveled from the United States to Pakistan, arriving in
Peshawer on April 27th (T. 2322-50).
The Government also called witnesses, including an asylum officer
with the Immigration and Naturalization Service, to establish that the
defendant had failed to seek advance parole before leaving the United States.
While the Government sought to elicit *18 testimony that the defendant thereby
abandoned his political asylum application, the testimony actually indicated
that the advance parole procedure was perhaps more form than substance.
A. Okay. Let me explain. When the individual is called in for an
interview, if it is discovered at that time that they left and returned, the
officer would require them to explain why they left, where they went, and if
they give a reasonable explanation of what was so urgent that they had to leave
and take a chance on abandoning their claim, the officer may or may not accept
that explanation and go through with the application.
Q. Unless the person had a good explanation and satisfied the officer?
A. If the person has a good explanation and satisfies the officer,
they will go ahead and adjudicate the claim.
(T. 1995-96).
(2) Ajaj's Travels in the Middle East
The Government spent a great deal of its time in summation
discussing the passport of Ajaj, basing its claims on the Government's own
partial translation of the passport entries [Exhibit 2796-T]. The Government's
translation, in fact, represents a remarkably calculated and misleading
selection of certain portions of the entries, with blatant omission of the
information which was either impossible or obviously inconsistent with the
Government's theory. In its translation, for example, the Government
specifically failed to translate dates which either reflected travel while Ajaj
was actually in the United States, or contained dates after Ajaj's return to
the U.S. and incarceration.
(I) Page 12 / Kuwaiti entry stamp: The Government failed to
translate the actual date of that stamp which, while partially obscured, is
April 8th or 9th. Given the fact
*19 that the passport was only issued in May of 1991, the date of
April would have to refer to April 8 or 9 of 1992; yet Ajaj was still in Texas
at that time, not in Kuwait.
(ii) Page 15 / United Arab Emirates stamp: The Government included
the translation of the date of cancellation of the stamp, 1/1/92; the
Government failed to include translation of the date of issuance, 9/15/92, not
only after its cancellation but also after Ajaj was already arrested!
(iii) Page 19 / United Arab Emirates stamp: The Government
translated the date of issuance as "June 13, ___ (?)" The actual
translation would have been June 13, 1993 -- long after Ajaj's arrest.
The Government's arguments regarding Ajaj's passport then served
as the basis for the Government's argument that the purpose of his supposed
travels was to obtain, from the Azzam office [FN6] in Saudi Arabia, a letter of
introduction to a terrorist training camp. According to the Government,
FN6. As
detailed below, the Government's assertion that there exists an Azzam house or
office in Saudi Arabia is (1) unsupported by, and in fact contrary to the only
evidence in the record; and (2) contrary to the actual fact that the only Azzam
house is in Pakistan (infra at 84-85).
that letter tells you the reason that he basically went all the
way to Pakistan, bounced back all the way to Saudi Arabia, took him all the way
to Saudi Arabia to Pakistan, again, because on May 21, 1992, which is the date
of the letter, he received this letter ...
[The letter] is from the Azam office, the Azam office located in
Saudi Arabia. That's what Ajaj is doing in Jeddah, that's what he's doing in
Saudi Arabia. That's why he had to go there to get it.
*20 (T. 9062) (emphasis added). So, the Government argued, the
passport stamps demonstrate that Ajaj "bounced" around the Middle
East and traveled to Saudi Arabia to get the letter on the stationery of the
Abdellah Azzam house. [FN7]
FN7.
AUSA DePippo also argued in summation that Ajaj's travel plans corresponded
with Yousefs. Based on stamps in Yousef's passport, the Government argued that,
in April, Yousef visited the Pakistani Embassy in Baghdad and obtained a travel
permit. According to the Government, by June of 1992 both Yousef and Ajaj were
in Pakistan (Tr. at 8315).
However, at the same time that the Government was relying so
heavily on Ajaj's supposed travel in and out of Pakistan, the Government's own
witness, Mark Cozine, testified -- accurately -- that Pakistani and Emirates
stamps in Ajaj's passport appeared counterfeit.
A. In fact, as I look through the passport right now, I would
venture to say the Pakistani entry stamp on page 17 appears counterfeit.
Q. Doesn't look good, does it?
A. No.
Q. Looks like he couldn't use it to get into Pakistan?
A. Probably not.
Q. Do you think you would have spotted that at the check? You were
pretty good right there?
A. It could also just be that it has been altered from whatever
chemical was used to bring out the fingerprints.
Q. You can't tell?
A. I can't tell at this point, no?
*21 Q. Other than the fingerprint stuff -- and we all agree that
that has nothing to do with this -- does anything else there look like it would
make you wonder? Not the little FBI tags. Those either; we are not interested
in those.
A. Resident of Emirates.
(T. at 2469-70 (emphasis added)).
The Government continued its assertions regarding Ajaj's itinerary
by establishing, correctly, that on July 1, 1992, Ajaj was at the American
Embassy in Islamabad seeking the assistance of the U.S. Embassy. Karen Stanton,
an employee of that embassy in Islamabad during the summer of 1992, described
in some detail the fact that, as of July 1st, Ajaj was seeking assistance from
the American Embassy in Islamabad so that he could return - - openly and under
his own name -- to the United States.
A. [Ajaj] came in on July 1st and asked for a transportation
letter to assist him to board an aircraft back to the United States.
Q. And under what circumstances did you meet him?
A. He came to the counter asking for this document, the
consulate's assistance with a transportation letter and so, as the consulate
officer who is there in the office at that time, his inquiry was passed to me.
...
Q. And what, if anything, happened when he showed you the card?
A. Well, I took the card and told him I could not give him a
transportation letter because the card allows him to be employed in the United
States, but it doesn't allow [2307] him to travel and to reenter the United
States. So, once having left the United States, he couldn't use that to go
back. And I was not -- I didn't have the authority to issue any kind of
document to return to the United States.
(T. 2306-08).
*22 This conversation establishes a number of critical facts: as
of July 1st, Ajaj did not have any intention of traveling under a false name,
and did not have any "terrorist network" assisting him in his travel
arrangements. More importantly, it was this conversation that apparently
persuaded Ajaj that he would have to use false documents to get back into the
United States -- Stanton had made clear that he could not reenter in his own
name. Unless he traveled to New Delhi, Ajaj would be able to return to the
United States only with false documents, not because of any nefarious
involvement in terrorism but because of his failure to obtain permission to
leave the country.
Stanton also confirmed Ajaj's discussion with her regarding his
activities in Pakistan -- testimony which actually confirmed that Ajaj's
activities in Pakistan related to the Pakistan universities.
Q. Did he discuss with you how long he had been in Pakistan and
what he was to be doing there at the time?
A. He said he had been there a few weeks and he had gotten a job
at Islamic University.
Q. Are you familiar with Islamic University?
A. Yes. I believe it's a university in Islamabad, Pakistan and
it's primarily focused on Islamic religious studies.
(T. at 2314).
Finally, Karen Stanton's testimony highlights one aspect of the
inherent illogic of the Government's theory: the Government claims that Ajaj
was traipsing through the Middle East to get the letter of introduction to a
terrorist training camp, then returned to Pakistan on June 14th, and then --
two weeks later -- was meeting with Karen Stanton to try to *23 return to the
United States. The Government must also concede that Ajaj's efforts to return
to the United States continued from July through his departure on August 31st:
as of August 3rd, his friend, Abu Khdeir, responded by letter to Ajaj's request
for money for his return ticket, and his tickets are then purchased on August
26th and 28th. It is difficult to imagine at what point the Government would
argue Ajaj's intensive terrorist training supposedly took place. [FN8]
FN8. The
Government has appeared to advance as reliable evidence the statement of Ramzi
Yousef in which he explains that the training in Afghanistan takes six months
(App. FBI Report of Statement of Ramzi Yousef).
(3) Ajaj's Return to the United States
Mark Cozine, Martha Morales, and Robert Malafronte testified
regarding the events at Kennedy Airport on September 1, 1992. Mr. Cozine
confirmed that Ajaj entered using a false passport and with military manuals in
his luggage. [FN9] He also explained, however, that ordinarily neither Yousef
nor Ajaj would be detained at the airport. As explained by Mr. Cozine, both
Ajaj and Yousef would typically have been allowed into the United States.
FN9. The
Government also elicited the testimony of Mark Cozine, at the Rahman trial,
that Ajaj was asked about his possession of the books and replied that
"they are just books, books aren't against the law, I can read whatever I
want" (Rahman at 8303). This testimony of Cozine is, however, completely
at odds with Cozine's statement to the FBI immediately after the incident.
According to that report, Cozine found the military manuals in the luggage and
asked Ajaj "why do you have these?" The report, prepared only days
after the event, states that "Cozine did not recall the subject's
answer" (App. FBI Report of Statement of Mark Cozine).
A. He would have been processed -- had he never admitted it, he
would have been processed and walked out the door the same way Ramzi Yousef
did, because at the time we was processing 15 to 18 hundred cases of
undocumented aliens a month. With minimal detention space, with no place to put
them, we let them go.
*24 (T. 2467). According to Mr. Cozine, however, because Ajaj
became "belligerent and loud" when he was being questioned, he was
arrested (T.2467). [FN10]
FN10.
Notably, Mr Cozine has since testified that Ajaj's conduct did not create a
distraction in the office (App. Rahman T. at 8293).
Ms. Morales also provided testimony regarding the events at the
airport and explained the reason that Yousef was permitted to enter the United
States -- a reason having nothing whatsoever to do with Ahmad Ajaj.
Q. And after you finished the paperwork, what happened to Mr.
Yousef?
A. After the paperwork was completed, I spoke to the supervisor on
duty -- I cannot make the decision as to whether to detain or release an alien
applying for political asylum in the U.S - and discussed the fact that I
believed he should remain detained because he had documents under several -- or
two identities, possibly three, including the boarding pass, and that I felt he
might pose a danger to the United States.
Q. Okay. That night, though, was he permitted to enter into the
United States? Was he released from your custody at some point?
A. Yes. The decision was made by someone other, and he was
permitted to leave on his own recognizance to appear at a later date at a
hearing before an immigration judge to determine his asylum claim or
admissibility.
(T. 2664-65) (emphasis added). Notably, throughout her testimony
Ms. Morales has emphasized that she reviewed the circumstances relating to
Yousef, including his possession of multiple identifications, his use of an
Iraqi passport, as well as the fact that both he and Ajaj were using
identifications in the same name; she then made a decision that he should be
detained (App. Rahman T. 8327-28; 8337-50). Yousef was not detained because her
*25 supervisors reached a contrary decision, not because of any conduct on the
part of Ajaj
Finally, Robert Malafronte also testified regarding the events at
Kennedy Airport. Most significantly, he described statements allegedly made by
Ajaj in response to his questions -- testimony which is contrary to the FBI
report prepared immediately after Ajaj's arrest. Malafronte claimed, at the
trial, that "when I found the British passport, I asked him how he got it.
And he said somebody gave it to him. I asked him if this person had beer
traveling with him and he said no, he traveled alone" (T. 2562).
The FBI report dated September 17. 1992, however, contains a
markedly different version of these events. As stated in that report,
Malafronte asked Ajaj about "his true identity" and Ajaj provided his
name; Malafronte asked where he obtained the Swedish passport and "the
subject would not say where he obtained the Swedish passport"; Malafronte
then asked Ajaj about the stamps and "other passports" in the luggage
and "the subject refused to answer any questions regarding these
items," "refused to give a statement under oath and stated that he
should speak with his lawyer" (App. FBI Report of Statement of Robert
Malafronte). Thus, the FBI report is devoid of any mention of the questions
regarding whether Ajaj traveled alone; instead, it suggests that, as of
September of 1992, Malafronte did not recall that inquiry or response.
Although Malafronte's testimony that Ajaj denied traveling with
anyone is plainly at odds with the FBI report, it served as a focus, even a
theme, of the Government's summation. By the conclusion of the trial, in fact,
the Government had seized on this one alleged statement -- Ajaj's purported
"denial" of Yousef - as the mechanism by which Ajaj *26 supposedly
"sprung" Yousef (T. 8326-28, 8331, 8504, 8510-11, 8516-17, 8523).
[FN11]
FN11. As
detailed below, the Government slowly but surely transformed this one piece of
Malfronte's testimony -- Ajaj's supposed response to one question -- into
Ajaj's supposed "denial of Ramzi Yousef." And this "denial"
was then described by the Government as Ajaj "sacrificing himself" so
that Yousef could enter the country. When one reads Malafronte's testimony in
context, not only the Government's characterization of Ajaj's alleged remark,
but also the claim that this enabled Yousef to get into the country is simply
unsupported.
(4) Ajaj's Luggage
The government introduced dozens of books, manuals and documents
seized from Ajaj's luggage. Notably, the evidence established that the luggage
was a hodgepodge of the belongings of others. Clothing, letters to and from
other people, and personal documents were mixed among military, political and
religious texts.
The Government then proceeded to offer fingerprint analysis which
demonstrated that Ajaj had handled the military texts. Interestingly, the
analysis actually supported the view that these were not the books and
materials of Ajaj. Over and over again the Government fingerprint expert, Carol
Edelen, acknowledged for the defense that the books contained the largest
quantity of unknown prints, and relatively few of Ajaj. With respect to a blue
book, Exhibit 2781, trial counsel emphasized that the witness had located 88
prints of value -- none belonging to Ajaj (T. at 7756).
Q: So basically we can conclude, based on your testimony, that
there are no Ajaj prints, four Ramzi Yousef prints and 84 prints that may be
from 84 different people or from one person or from any number of people
between 1 and 84?
A: I can testify that none of those 84 prints, if they are
fingerprints, were Mr. Ajaj's fingerprints.
* * *
*27 Q: Take a look, if you would, at 2782, and that's one of the
ones that you talked about yesterday. On that one, if I understood you
correctly, there are 178 prints of value of which 35 are Ajaj's and two are
Yousef s, correct?
A: That's correct.
Q: And that means there's how many prints that you can't identify?
A: 141.
Q: And again I take it that the same point would be made, as you
sit here right now, that could be 141 different people touched that book at
some point in time?
A: That's possible.
Q: Or one person managed to get 141 of his fingerprints or her
fingerprints on it?
A: Yes, that's correct.
* * *
A: 2808 was processed. There were a total of 105 latent prints
developed.
Q: 105. And how many were Ajaj's?
A: None.
* * *
Q: So you had a total of 1468 latent prints of ali kinds?
A: Yes...
Q: Out of those 1468 prints on all those items, and we're only
talking about the 2800 series now, we're not doing the 2700 series, is the 2700
series, is that correct?
A: That's correct.
Q: On the 2800 series, out of those 1468 prints, how many were
Ajaj's?
*28 A: 180 fingerprints.
Q: And how many were Yousef's?
A: 42 fingerprints.
* * *
Q: Now with respect to the 2700 series, and that would include
these blue books and the video cassettes, a brown book and four passports, I
think. Am I at least right on that?
A: Yes, that's correct.
Q: On those you found a total of approximately 553 fingerprints,
81 palm prints and 3 impressions, I think?
A: That's the correct number, yes ...
Q: Of those prints, 11 were Ramzi Yousef's?
A: That's correct.
Q: 62 were Ajaj's?
A: That's correct. Yes.
Q: And 193 belonged to another person or other people?
A. I don't have that correct number, but the remainder I do not
know who they belonged to.
(T. 7756-80) (emphasis added) (See also T. 7768-76).
Had Ajaj, in fact, owned and used these books, certainly his
prints would have constituted the majority of those found in the books.
Nevertheless, based on these fingerprints, the Government sought
to prove more than Ajaj's mere possession of these materials. A critical aspect
of the Government's case -- and a focus of the Government's summation --
involved the testimony of fingerprint *29 expert Carol Edelen regarding the
significance of the placement of Ajaj's prints on Exhibit 2805. The government
elicited, and the Court permitted, Edelen to describe in detail the purported
placement of seven fingerprints on three pages in Exhibit 2805 and then to
state a supposed expert opinion regarding that placement. [FN12]
FN12. By
the time the Government had elicited this testimony, and the trial court asked
that portions of it be repeated, her direct examination as to "placement"
occupies more than 13 pages of testimony (T. 7686-99).
Q: Mrs. Edelen, I believe you said that there were fingerprints
you identified as those belonging to Ahmad Ajaj appearing on page 14.
A. Page 14, there was one fingerprint of Ahmad Ajaj.
Q. Could you please turn to page 14 and show us the positioning --
the positions in which the fingering that [ 7687] appears on that page?
...
A. Fingerprint identified as Ahmad Ajaj on page 14 of Government
Exhibit 2805 was a left ring finger and it appeared, if the page were straight
up, it would be sideways, approximately two and a half inches from the top, but
laying on the side like that and, again, it's the ring finger.
Q. Now, if I could next direct your attention to page 21. And if
you could give us the, again, the position of the fingers on that page?
A. Two fingerprints identified on page 21 of Government Exhibit
2805 were the left middle and left ring fingers of Ahmad Ajaj. And they were in
a position in the lower left corner. Again, if the book is held upright, they
are on their side in the lower left corner in that position.
Q. And, finally, at page 27, if you could give us the position of
the fingerprints left by Mr. Ajaj on that page?
A. Two of the fingerprints that were identified as being those of
Mr. Ajaj are in the lower portion, [7688] approximately two to two and a half
inches from the bottom. If the book were held upright, they would be in the
side position, sideways position. That's the left middle and left ring fingers.
Closer to the left side, just a little above those, approximately two and a
half inches from the *30 bottom, there is No. 10 finger, which is the left
little finger, along the very left edge, approximately three inches from the
bottom, the left middle finger is again on its side in that position. And along
the left edge of the page, approximately an inch from the bottom, again, is the
left middle finger on its side in that position.
Q. Now, Mrs. Edelen, with respect to the positioning and the
number of prints that are in that Government Exhibit 2805, were you able to
come to any additional conclusions beyond the mere identification of those
prints as belonging to Ahmad Ajaj?
MR. CAMPRIELLO: Judge, before she answers, I object. I don't know
that she's been established as an expert on that.
...
DIRECT EXAMINATION CONTINUED BY MR. CHILDERS
Q. Given the positions of the fingers and the numbers of prints
left in this book that you've identified, lining them up with the positioning,
were you able to come to any conclusions?
MR. CAMPRIELLO: Well, if the answer is going to be
"yes," that's okay. It's the next answer I guess that I would object
to.
THE COURT: I assume the answer is going to be "yes." [
7692]
MR. CHILDERS: I'm anticipating "yes."
THE COURT: How about it?
A. I could determine the way the hand was placed on the item, when
it was touched, yes.
THE COURT: Okay. So, do you want to tell us how you found the hand
placed on the item?
THE WITNESS: Do you want me to go back through the same once
again?
THE COURT: Yes. Whatever is there; sure.
THE WITNESS: On page 14, again, the left ring finger was placed on
the side of the page approximately two and a half to three inches down and *31
approximately two inches from the left side. And it is as if the hand were
being held sideways like that, the ring finger. On page 21, the lower left
corner approximately one inch from the bottom along the left edge is the left
middle finger on its side and the ring finger beside it, again, on its side as
if it were held in that position. Or if the paper -- the book were laying on a
table, it would be held in that position. On page 27, approximately three to
three and a half inches from the bottom of the page along the left edge of the
page is the left middle finger in that position, again, being held like that or
if the page were laid on a table or a lap, it would be in that position.
Approximately [7693] two inches from the bottom and almost in the center is the
left middle finger. Next, on top, the left ring finger and then a short
distance from that, the left little finger. Again, if the page were being held
down, it would have been held with those three fingers. And the one, I don't
think I mentioned this one, about an inch from the bottom, again, right along
the left edge would be the left middle finger in the sideways position or if
the page were held down, it would be in that position. Those are the only three
pages -- oh, there's one more -- no, that's it. Those are the only three pages
I mentioned.
(T. 7688-92). It is this -- Edelen's description of the placement
of a few fingerprints -- that served as the only basis for the Government's
emphatic assertion that Ahmad Ajaj wrote the manual on explosives. It was this
testimony that supposedly supported the Government's extraordinary -- and
otherwise wholly baseless - argument, in summation, that Ajaj took an
explosives course in Pakistan.
Now, you know that Mr. Ajaj wrote those handwritten manuals and
you know it because of the positions of the prints that Carol Edelen went
through on Government Exhibit 2805 and 2824 ... (T. 9063-64).
This was the particular manual that Carol Edelen, the fingerprint
expert, told you a lot about ... You can tell from the fingerprints in this
book, what's happening. The author of this book is holding it down with their
left-hand and they're writing it out with their right-hand. You can tell that
from the manner in which the fingerprints appear on this particular book. And
whose fingerprints are they laden all over this book? Ahmad Ajaj's. These are
the notes before you that he took when he was raking this explosives course.
So, you know exactly what he was learning about when he was taking this course
in Pakistan.
T. at 8319-21 (emphasis added)).
*32 (5) Ajaj's Telephone Conversation with "Rashed"
As a final aspect of its case against Ajaj, the Government
established that Ajaj's friend, Mohammed Abu Khdeir, patched him through on the
telephone to Ramzi Yousef -- the man Ajaj knew as "Rashed." And in
one phone conversation, on December 29th, the two men discussed Ajaj's luggage.
Because the conversations with Abu Khdeir, and with "Rashed," are so
innocuous on their face, the Government was forced to argue that these
conversations and their references to "university papers" and
"studies" were a "code." In reality, the tapes make it
plain that Ajaj was not speaking in any "code" but was simply
continuing conversations with his friend Abu Khdeir regarding their student
service business. Even the Government has now casualty acknowledged that there
is "some evidence in the record that Ajaj was engaged in the university
services business" (Gov't. Reply Mem. at 45); it therefore remains
difficult to conceive of the actual basis for the Government's contention that
their conversations about "universities" were suddenly transformed
into a "code."
While the Government made much of the three-way mechanism of
Ajaj's calls to "Rashed," these assertions too disregarded and
distorted the evidence in the Government's possession. That Ajaj reached
"Rashed" through Abu Khdeir was plainly a result of the fact that
Ajaj did not have a telephone number for "Rashed." As was apparent
from the Government's proof, Ajaj had given "Rashed" a telephone
number in Texas through which he could be reached -- the phone number of his
friend, Mohammed Abu Khdeir (App. Fritz Aff. Ex. 66 Yousef's notes). [FN13]
After the scene at the airport, "Rashed" apparently called Abu *33
Khdeir and only later gave to Abu Khdeir a number to reach him (App. Fritz Aff
Ex. 40 Transcript 9/12/92 @ 19:53 at 3). It was after this contact from
"Rashed" that Ajaj asked Abu Khdeir to connect him to
"Rashed."
FN13. As
discussed below, the Government has now acknowledged that "Yousef claims
that he had Abukhdeir's telephone number so that he could later get in touch
with Ajaj" (Govt. Reply Mem. at 91 n.27). Given this information, the
Government apparently now concedes that the evidence suggests that Ajaj and
Yousef were parting company in New York.
Further, while the Government also suggested that it was
suspicious that Ajaj had Abu Khdeir patch him through to Rashed, rather than
calling directly, the tapes reflect that Ajaj used that same procedure for any
contact -- no matter how innocuous. He appeared to be comfortable making a
collect call only to Abu Khdeir, who then helped him call others directly. This
is, for example, the means by which Ajaj called his mother and father and other
relatives (App. Fritz Aff. Ex.s 40-45 & 67-69 Transcripts 9/23/92 @ 6:10;
10/17/92 @ 12:50; 9/24/92 @ 12:10 at 4), and his attorney, Douglas Morris
(Transcripts 9/24/92 @12:10 at 4).
Perhaps most importantly, the transcript of the conversation
relied on by the Government, December 29, 1992, failed to actually offer any
support for the theory of conspiracy (App. Fritz Ex. 69 Transcript of
12/29/92). At the outset, Ajaj spoke to Rashed regarding his case, and the fact
that the judge directed the return of his luggage. Ajaj then expressed his
concern that his belongings would be sent to the wrong address (12/29/92 at 4).
Only after Ajaj had spoken at some length about these concerns does Rashed ask
if he should "receive" the luggage (12/29/92 at 5). Ajaj responded
"By God it's not, it's not, it's not good, it's not good because it's
going to be a headache for you ..." Ajaj, again later, asked that Rashed
call Ajaj's attorney regarding the luggage but again stated that Rashed should
not "give [the attorney] an address or anything."
*34 Then, on January 4th, less than one week after this
conversation with Rashed, and plainly rejecting any assistance from Rashed or
his friends, Ajaj directed his attorney to have the luggage sent to Imran Mirza
in Houston, Texas. As stated in the letter of attorney Douglas Morris, "my
client Mr. Ahmad Ajaj has asked me to ask the Government to send his property
to Mr. Imran Mirza, Esq., 190 West Loop South, Suite 950, Houston, Texas,
77027" (App. Fritz Aff. Ex. 70 Letter from Douglas Morris dated 1/4/93).
This letter, however, was never seen by the jury.
F. The Conduct of the Defense
Throughout the trial of this case, the defense was burdened with
circumstances which rendered a full investigation and effective defense
impossible. First and most significantly, was the speed with which this
extremely complex case was brought to trial. This defendant was initially
charged with the World Trade Center bombing in May of 1993 and was, at that
time, represented by Lynne Stewart. Because the court was unwilling to
authorize payment for her investigative expenses, Ms. Stewart was then
replaced, on or about June 21, 1993, by Austin Campriello. The case then
proceeded to trial on September 14, 1993. Even the Court acknowledged that the
case was brought to trial "as fast as I could possibly do it."
THE COURT: But you must admit, the reason the case was pushed to
trial so fast is because someone demanded an immediate speedy trial.
MR. CAMPRIELLO: Not I and not my client.
...
THE COURT: .... [I]n order to accommodate the demand for a speedy
trial you guys got pushed along as fast as I could possibly do it, trying to
balance.
*35 (T. 1822 (emphasis added)). As a result, in a case which was
predicated on foreign events, volumes of Arabic documents and tapes, and myriad
complex legal and factual issues, Mr. Campriello had less than three months to
learn the facts of the case from an initially mistrustful client, review the
volumes of critical documents and tapes, prepare and file all appropriate
motions, and conduct a full scale investigation of events which took place in
large part on the other side of the globe.
Mr. Campriello's ability to learn the facts of the case was, at
the same time, continuously impeded by the conditions of the defendant's
incarceration and by Ajaj's inability to speak English. The records indicate,
for example, that Mr. Campriello had only seven meetings with his client prior
to the beginning of the World Trade Center trial. He had only one opportunity
to review the critical physical evidence, at the United State's Attorney's
Office, with his client, and even that was conducted under the most distracting
and difficult circumstances. As Mr. Campriello stated in his Affidavit to this
Court:
Our review was conducted under very difficult conditions. We were
in a room with two New York City police detectives and a paralegal. Mr. Ajaj's
wrists were handcuffed to the arms of the chair in which he sat. I had to hold
documents to his face so that he could read them. At my request, the officers
played a radio so as to impede their ability to overhear conversation between
Ajaj and me. (At their choice, they played rock and roll oldies). So as to
complete the examination expeditiously, we worked nonstop for more than six
hours. Mr. Ajaj never left his chair. I left mine only to pick up material.
(App. Fritz. Aff. Ex. 2 Affirmation of Austin Campriello at n.2
(emphasis added)). Further, this review was conducted without the benefit of an
interpreter, notwithstanding the fact that *36 Ajaj at that time had tremendous
difficulty with English. As Mr. Campriello commented months later:
What happened was in the beginning -- the bottom line is Ajaj's
English has improved dramatically during the time that I've been with him. In
the beginning [an interpreter] was the only way I could communicate with him.
(T. 8190).
The defense's inability to prepare was exacerbated by the delays
in the Government's production of even the most fundamental materials. A review
of the record demonstrates that the defense did not receive the bulk of
critical discovery until after the trial commenced -- a circumstance which may
be manageable in some trials but which, in this case, completely prevented the
defense from accomplishing anything beyond keeping up with the Government's
evidence.
The nature and volume of the material that was provided to the
defense -- as the trial progressed -- was staggering. Merely by way of example,
the defense received the most critical telephone tapes of Ajaj only after the
trial had begun. In April 1993, the Government had issued a subpoena to the
Bureau of Prisons for the tape recorded conversations of Ajaj. Mr. Campriello
was then provided with approximately seven cassettes of Ajaj's conversations
and, on October 4, 1993, delivered his opening to the jury with references to
the evidence that he believed existed. Not until October 19th -- two weeks later
-- did the Government suddenly produce an additional 13 cassettes of Ajaj's
telephone conversations, including the conversation with Ramzi Yousef, known to
Ajaj as "Rashed" (T. 5736). On that date, Mr. Campriello emphasized
to the Court the prejudice to his client from the Government7Ds sudden *37
revelation of significant evidence. Mr. Campriello reminded the Court that he
had sought an assurance from the Government that he had been provided with all
tape recordings, and opened to the jury based on his knowledge of the tape
recordings with which he had been provided (T. 1192-93, 5736-38).
MR. CAMPRIELLO: Early on in the process, shortly after your Honor
assigned me this matter, I wrote a letter to the government asking to be
provided with whatever recordings existed of any conversations Mr. Ajaj had
while he was incarcerated. I did not know this was going to arise today, so I
did not bring that letter with me. If I had to guess, I would guess that I
wrote it in July. I'm not certain. In any event, I wrote the letter, and
subsequently the government did provide me with a number of cassettes of
conversations they indicated were made between Mr. Ajaj and other people during
the period of his incarceration.
I listened to them, he listened to them, I had an interpreter
listen to them, because they were predominantly, indeed almost overwhelmingly,
in Arabic. I asked the government if those were all of the recorded
conversations, and my understanding is that I was told they were. Your Honor
may recall that I opened indicating what I believed to be true based on my
listening and the listening of others to those conversations: Namely, there was
nothing in those conversation that is incriminating. This morning, I was handed
a letter along with a package. The package contains yet additional cassettes,
and the letter identifies what appeared to be 13 separate tapes -- I'm not
sure. There are 11 dates, but two of the dates indicate two tapes of cassettes
I am led to believe involve Mr. Ajaj and person or persons on the outside. The
government, in answer to my inquiry, told me they first learned of the
existence of the cassettes approximately two days ago, and therefore gave them
to me. I don't know whether or not they intend to introduce them. I am still
convinced, based on my general investigation, there is nothing at all that
could possibly be harmful. However, I opened in good faith, based on what I was
led to believe were the facts by the government, and I don't want to be
sandbagged, and I want the record to reflect the facts I just indicated to your
Honor in case it becomes a problem down the road. So that the record will
reflect it and your Honor has been made aware of the facts as I understand them
to be as *38 soon as I came to understand them to be the facts.
(T. 1192-93 (emphasis added)).
Notably, in response to Mr. Campriello's objections, AUSA DePippo
flatly misrepresented to the Court the reason for the delay in the production.
For some inexplicable reason, AUSA DePippo claimed to the Court that the
Government had failed to obtain the new recordings because the defendant had
figured out how "to beat the [telephone recording] system" by dialing
other numbers. AUSA DePippo's assertion -- plainly intended to excuse the late
production and to suggest some intentional concealment on the part of Ajaj --
was unquestionably false. These critical recordings, including the tape of
"Rashed," were precisely the same as the other calls to Abu Khdeir
and their late production was simply a product of their own failure to locate
the calls.
Notwithstanding these circumstances, the Government was permitted
to introduce at least 8 of the tapes that were made available to Mr. Campriello
only after the beginning of the trial -- including the conversation with
"Rashed" (T. 5737).
At the same time, the Government was producing translations and
transcripts of those tapes on an ongoing basis throughout the trial. Mr.
Campriello advised the Court even as late as November 18, 1993 that the
Government was still in the process of providing transcripts and that the
defense was having an interpreter review them for accuracy of the translation
(T. 2702, 2980). As of December 16, 1993, Mr. Campriello told the Court that he
had still not received transcripts, although the Government intended to introduce
them on the following Monday (T. 5580-82). It was only over the weekend of
December 18th that the defense finally received and reviewed the transcripts
which the Government actually intended *39 to introduce. In fact, some
transcripts were provided in the early morning hours, and others only as the
trial session began (T. 5753-5757). This resulted in a lengthy review, with the
Court, of disputes regarding the translations. As Mr. Campriello told the Court
on December 20, 1993:
I have received thirty foul transcripts. Many of them I've
received in the past week or two weeks. I was not told which were going to be
offered and which were not going to be offered. ... I put enormous amounts of
time as did the people working with me in all of them because I did not know
and was not told.
(T. 5745-46).
The process of the review and translation of the materials from
Ajaj's luggage was equally belated and disorganized. According to the record,
Mr. Campriello did not receive translations from the Government of the material
in Ajaj's luggage until approximately January 1, 1994 (T. 5853). As Mr.
Campriello explained to the Court on January 3rd,
On Thursday I received a package of translations from the
Government of some of the material that was taken from Ajaj. The package was
the size of your Honor's wastebasket. Over the weekend I was able to go through
about a third of it and read it.
(T. 5853; see also T. 6592 (CAMPRIELLO: "What happens is
about every couple of weeks I get updates on all this stuff ... It's a problem
because with all due respect to the Government they do not red line each update
every time so I have to relook at it all")). Notably, it would appear that
the defense therefore spent the first four months of the trial without specific
information about the contents of the books and manuals contained in the
luggage. In fact, the situation was so chaotic that Mr. Campriello actually
introduced into evidence a document which he himself described as
"unbelievably prejudicial" to his client.
*40 One of the documents that Mr. Childers and I discussed on
Friday when we met here and went through matching up documents is a page that
basically is four questions. My understanding of it, it is four questions being
asked by some unknown questioner of a religious authority in terms of what the
Islamic religious rules are about killing women and children in combat.
...
Obviously I don't want that in. I think it is unbelievably
prejudicial. Had I any understanding of Arabic I would not have obviously
introduced that.
(T. 7386).
The same haphazard process was applied to the introduction of the
Government's translation of Ajaj's Jordanian passport -- a translation which is
misleading both in the substance of the translation and in the omissions (infra
at 65-70). The translation was apparently first shown to Mr. Campriello on
January 25, 1994 (T. 7231). The Government translation was thereafter admitted
into evidence without correction or reference to its discrepancies and
omissions.
A similar situation existed with respect to the tape recordings of
the Government's informant, Emad Salem. [FN14] Only on or about October 27,
1993 did the defense learn of, and request, the tape recordings made
surreptitiously by Emad Salem (T. 1601-02). Not until Thursday, October 31,
1993 did the defense receive a copy of transcripts of the Salem tapes (T.
1819). Mr. Campriello subsequently argued to the Court that the fact that he
had not had the tapes prior to trial had severely hampered his ability to
defend and to cross-examine. Mr. Campriello also stated that the failure to
provide the Salem tapes only *41 compounded the Government's failure to turn
over to the defense the copies of Ajaj's own conversations.
FN14.
Salem made tape recordings of the targets at the Government's behest, and also
made "bootleg" recordings of his conversations with the agents and
prosecutors.
What is particularly troubling to me is that we got these things
late because, as I have already put on the record earlier, I was given tapes
that I requested, I believe on July 2nd, involving conversations my client had
while incarcerated just about a week ago or a week and a half ago. So there
seems to be a track record of giving us this stuff in drips and drabs.
(T. 1821). It was Mr. Campriello's position that an adjournment
should be granted to permit the defense an opportunity to review the tapes. His
application was denied.
In sum, the scope and complexity of the case, the speed with which
it was brought to trial, and the manner in which discovery was provided -- all
served to place on the defense an overwhelming burden even to absorb the
Government's case. Given the overwhelming effort involved in keeping abreast of
the Government's evidence, Mr. Campriello could not and did not have the
opportunity to affirmatively learn or investigate the case on behalf of his
client.
The defense was hampered by another critical factor: the
defendant's physical and mental condition. From the time that he was implicated
in the World Trade Center case, through the verdict, the defendant experienced
a series of physical and psychological problems, underwent extraordinarily
harsh conditions of incarceration, and was debilitated by a series of hunger
strikes. As a result of these conditions, Ajaj had only the most limited
ability to focus on the case, to communicate effectively with his lawyer, and
to review and understand the volumes of documents and tapes, and the
translations of that evidence.
In an appearance before the Court, on May 28, 1993, attorney Lynne
Stewart??
Note: Pages 42-?? Missing in original document
UNITED STATES OF AMERICA, Appellee, v. Mohammed A. SALAMEH, Nidal
Ayyad, Mahmoud Abouhalima, also known as Mahmoud Abu Halima, Ahmad Mohammed
Ajaj, also known as Khurram Khan, Defendants-Appellants, Ramzi Ahmed Yousef,
Bilal Alkaisi, also known as Bilal Elgisi, Abdul Rahman Yasin, also known as
Aboud, Defendants.
1996 WL 33660772