United States v. Khan
| Decision Date | 04 March 2004 |
| Docket Number | No. CRIM.03-296-A.,CRIM.03-296-A. |
| Citation | 309 F.Supp.2d 789 |
| Parties | UNITED STATES of America, v. Masoud KHAN, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Virginia |
Todd Stewart Baldwin, Baldwin Molina & Escoto, Barry Coburn, Meredith Ann Taylor, Coburn & Schertler, Washington, DC, for Defendants.
Gordon D. Kromberg, David H. Laufman, United States Attorney's Office, Alexandria, VA, for United States.
This case came on for trial by the Court1 beginning February 9, 2004 on an indictment against defendants Masoud Khan, Seifullah Chapman, Hammad Abdur-Raheem, and Caliph Basha Ibn Abdur-Raheem (hereinafter Caliph Basha). The indictment charged these four defendants, co-defendants who entered guilty pleas, and unnamed, unindicted co-conspirators with 32 counts. The superseding indictment alleged against these four defendants conspiracy (Count 1, 18 U.S.C. § 371), conspiracy to levy war against the United States (Count 2, 18 U.S.C. § 2384), conspiracy to provide material support to al-Qaeda (Count 3, 18 U.S.C. § 2339B), conspiracy to contribute services to the Taliban (Count 4, 50 U.S.C. § 1705), conspiracy to contribute material support to Lashkar-e-Taiba ("LET") (Count 5, 18 U.S.C. § 2339A), commencing an expedition against a friendly nation (Counts 9-10, 18 U.S.C. § 960), conspiracy to possess and use firearms in connection with a crime of violence (Count 11, 18 U.S.C. § 924(o)), receipt of ammunition with cause to believe a felony will be committed therewith (Counts 12-14, 18 U.S.C. § 924(b)), and use and possession of firearms in connection with a crime of violence (Counts 20-22, 24-27, 31-32, 18 U.S.C. § 924(c)).2 Co-defendants Randall Royer, Ibrahim Al-Hamdi, Yong Kwon, Mohammed Aatique, Donald Surratt, and Mahmoud Hasan entered into plea agreements and pled guilty to various counts in the indictment.
The factual allegations in the indictment focus on the defendants' involvement in activities starting in January 2000 and continuing through June 2003, which the government maintained constituted preparation for violent jihad overseas against nations with whom the United States was at peace and providing material support to terrorist organizations. The indictment alleges that the preparations culminated in Khan and other co-conspirators attending a terrorist and jihad training camp after September 11, 2001, with the intent to proceed to Afghanistan and fight for the Taliban and Al-Qaeda against United States troops. The indictment further alleges that Royer and Al-Hamdi had participated in attacks on Indian forces in the disputed Kashmir region.
After the conclusion of the government's evidence, defendants moved for judgment of acquittal pursuant to Fed.R.Crim.P. 29. The motions of Khan, Chapman, and Hammad Abdur-Raheem were granted in part and denied in part, and various counts dismissed with prejudice as to these defendants, as detailed in our Order of February 20, 2004. The motion was granted in its entirety as to Caliph Basha, and all counts against him were dismissed with prejudice, because we found insufficient evidence to support conviction on any count, for the reasons stated in open court. At the conclusion of all the evidence, the defendants renewed their motions for judgment of acquittal as to the remaining counts. Those motions were denied.
This memorandum opinion explains the factual findings and legal conclusions that support our judgment that defendant Khan is guilty of Counts 1, 2, 4, 5, 11, 24, 25, and 27; defendant Chapman is guilty of Counts 1, 5, 11, 20, and 22, and defendant Abdur-Raheem is guilty of Counts 1, 5, and 11; and that these defendants are not guilty of the remaining counts.
Before trial, defendant Chapman moved to suppress, pursuant to Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) and Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), the use and derivative use of statements that his former counsel, Phillip Leiser, made during a pretrial suppression hearing. As explained in open court and discussed in more detail in this opinion, we suppressed direct use of Leiser's testimony, but allowed the use of evidence related to his statements, finding that the Kastigar derivative use doctrine did not apply, and that even if Kastigar did apply, that the government satisfied its burden to show that the evidence at issue was an inevitable discovery from an independent source.
A. Background
After he was initially indicted, Chapman was arrested by authorities in Saudi Arabia, and was turned over to United States law enforcement agents. Chapman was then transported from Saudi Arabia to the Eastern District of Virginia by airplane. Count 15 of a superseding indictment alleges that during this flight Chapman made false statements, in violation of 18 U.S.C. § 1001(a), that he had not attended or seen LET or jihad training camps.
Chapman moved to suppress any statements made to law enforcement after his arrest in Saudi Arabia, on the grounds that they were in violation of his Sixth Amendment right to counsel. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Specifically, Chapman argued that his statements must be suppressed because he had retained Leiser as counsel, the government was aware that Leiser had been retained, and Chapman desired his attorney's assistance in dealing with interrogation. The government responded to the motion by arguing that Chapman had told FBI agents aboard the plane that Leiser was no longer his attorney, he did not know whether an attorney had been appointed for him, and that the FBI agents relied on these statements in continuing to question Chapman.
To resolve the disputed facts regarding whether Leiser was Chapman's attorney at the time of questioning, the Court held an evidentiary hearing. Chapman's present counsel, Lisa Kemler, called Leiser as a witness to testify as to the existence and scope of the attorney-client relationship between Chapman and Leiser. Leiser's testimony detailed his communications with Chapman regarding FBI Special Agent Wade Ammerman's request for an interview with Chapman and Leiser's efforts to arrange such an interview. On cross-examination, Assistant U.S. Attorney Gordon Kromberg asked:
Q. In your communications with Mr. Chapman, did he tell you that he needed representation regarding his attendance at a Lashkar-e-Taiba training camp in Pakistan?
A. No.
Q. About his travel to Pakistan?
A. No.
Q. About violations of the Neutrality Act for going to Pakistan?
A. No.
Q. Material to support terrorism?
A. No.
Q. For firearms charges?
On redirect, Kemler asked:
Q. Mr. Leiser, what was Mr. Chapman's understanding of what they wanted to talk to him about?
A. Mr. Chapman had indicated that he had regularly attended the Islamic Institute, I believe, here in Northern Virginia, that he had met somebody there who had asked him to make a purchase of some video equipment which he understood was later used on some type of remote-controlled, like, model airplane, and that his understanding was that Agent Ammerman wanted to discuss that, that purchase with him.
While Leiser was reviewing his notes, the Court noted:
Ms. Kemler, I didn't probe this with you, but obviously, by asking these questions on behalf of Mr. Chapman, there's been a waiver to some degree of the attorney-client privilege.
MS. KEMLER: Yes. We were aware of that, Your Honor.
Kemler then followed up:
Q. Okay. After looking at your notes, do you recall any additional matters that were discussed about what the scope of the interview would be?
A. No, that was it. Mr. Chapman had informed me about the prior questioning in '99 or 2000, that it concerned this paintball exercises that he engaged in with some friends, but that he believed that this particular questioning concerned a purchase of the video equipment for a person named Khalid, Khalid Singh.
Chapman then sought to suppress at trial the direct use of Leiser's testimony regarding the purchase of video equipment under the holding in Simmons, and argued that records documenting the purchase of video equipment and communications regarding the purchase must also be suppressed as fruits of the suppression hearing testimony pursuant to Kastigar.
Chapman relies on Simmons, which held that a defendant may testify in a pretrial suppression hearing without surrendering his Fifth Amendment right not to be forced to incriminate himself. In Simmons, the defendant testified at a suppression hearing to establish he had standing to bring a Fourth Amendment challenge to a search. The state then sought to admit the defendant's suppression hearing testimony at trial to link him to the evidence. The Supreme Court ruled that the defendant's testimony at the suppression hearing did not waive his Fifth Amendment right not to have his testimony used against him at trial, reasoning that it is "intolerable that one constitutional right should have to be surrendered in order to assert another." Id. at 394, 88 S.Ct. 967. Here, Chapman faced a similar predicament, as he was required to waive his attorney-client privilege, derived from the Fifth and Sixth Amendments, in order to...
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