U.S. v. Sattar, S1 02 Cr. 395(JGK).

• Decision Date: 24 October 2005
• Docket Number: No. S1 02 Cr. 395(JGK).,S1 02 Cr. 395(JGK).
• Citation: 395 F.Supp.2d 66
• Parties: UNITED STATES of America v. Ahmed Abdel SATTAR, a/k/a "Abu Omar," a/k/a "Dr. Ahmed," Lynne Stewart, and Mohammed Yousry, Defendants.
• Court: U.S. District Court — Southern District of New York

395 F.Supp.2d 66

UNITED STATES of America v. Ahmed Abdel SATTAR, a/k/a "Abu Omar," a/k/a "Dr. Ahmed," Lynne Stewart, and Mohammed Yousry, Defendants.

No. S1 02 Cr. 395(JGK).

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

October 24, 2005.

COPYRIGHT MATERIAL OMITTED

Barry M. Fallick, Rochman Platzer Fallick & Rosmarin, Kenneth Alan Paul, Law

Office of Kenneth A. Paul, Robin L. Baker, U.S. Attorney's Office, SDNY (St Andw's), New York, NY, Steven P. Ragland, The Tigar Law Firm, Annapolis, MD, for Defendant, Ahmed Abdel Sattar, Also Known as Abu Omar Also known as Dr. Ahmed.

David Stern, Rothman, Schneider, Soloway & Stern, P.C., New York, NY, for Defendant, Mohammed Yousry.

Christopher Jude Morvillo, U.S. Attorney's Office, SDNY (St Andw's), Joseph F. Bianco, Assistant United States Attorney, Mary Jo White, United States Attorney Criminal Division, New York, NY, for Plaintiff.

OPINION & ORDER

KOELTL, District Judge.

Defendant Lynne Stewart moves for a new trial pursuant to Fed. R. Cr. P. 33, or in the alternative, an evidentiary hearing based on alleged juror misconduct by Juror # 82 during the voir dire examination. Defendant Stewart also requests that the Court conduct an inquiry into allegations of extraneous influence on Juror # 39 and complaints by Juror # 39 about the deliberation process. Co-defendants Ahmed Abdel Sattar and Mohammed Yousry join in these applications. For the following reasons, these applications are denied.

I.

The relevant facts relating to the defendants' applications are as follows. On February 10, 2005, after an eight-month jury trial, defendants Stewart, Sattar, and Yousry were convicted of all charges contained in the seven-count Superseding Indictment. (Tr. 13116-19.) Specifically, the jury convicted Sattar of solicitation of crimes of violence and conspiracy to kill persons in a foreign country in violation of 18 U.S.C. §§ 373 and 956. Stewart and Yousry were convicted of providing and concealing, and conspiracy to provide and conceal, material support and resources to terrorist activity in violation of 18 U.S.C. §§ 2339A and 371. Stewart was also convicted of two counts of false statements in violation of 18 U.S.C. § 1001, and all defendants were convicted of conspiracy to defraud the United States in violation of 18 U.S.C. 371. Among the twelve jurors rendering the verdict were Jurors # 82 and # 39.

A.

On June 3, 2005, nearly four months after the jury returned the verdict, defendant Stewart moved for a new trial pursuant to Fed.R.Crim.P. 33, or alternatively for an evidentiary hearing, because Juror # 82 allegedly provided material false information during the voir dire process, denying Stewart her Sixth Amendment right to an impartial jury. (Stewart Mot. 1.) Co-defendants Sattar and Yousry join in this motion. (Stewart Reply Mem. at 1 n. 2.)

As evidence of Juror # 82's misconduct, Stewart offers the May 24, 2005 sworn declaration of Juror # 76, a prospective juror not selected for the trial in this action. (5/24/2005 Decl. of Prospective Juror # 76 at ¶ 1.) Prospective Juror # 76 recalls that while awaiting jury selection a year earlier on May 20, 2004, she and the other prospective jurors rearranged their chairs to talk to each other, and she overheard Juror # 82 talk "about many things, but mainly about sports." (Id. at ¶ 3-4.) Prospective Juror # 76 states that "[a]t some point in the afternoon, [Juror # 82] told us that he had been in jail for a couple of nights when he was in the military and that he did not want to go back there. He then said, in substance, that if someone is in front of a judge on charges, it is because they had done something wrong." (Id.) Prospective Juror # 76 watched the Court swear in Juror # 82 as a member of the jury, but did not inform the Court of what she had heard. (Id. at ¶ 5.) Prospective Juror # 76 first provided this information by contacting defense counsel after the trial. (Id. at 1 n. 1; Stewart Reply Mem. at 4 n. 3.)

Due to the extensive publicity surrounding this case, a two-part voir dire process was used before trial. Prior to jury selection in May 2004, approximately 500 prospective jurors, including Juror # 82, filled out a lengthy 45-page juror questionnaire. (6/02/2005 Dratel Decl. in Support of Post Trial Motion, Ex. 2 ("Juror # 82 Questionnaire").) The Government, defendants, and the Court reviewed the completed questionnaires to strike jurors for cause and identify any issues that needed to be explored through questioning of individual jurors. The remaining prospective jurors were individually interviewed by the Court in open court. All the prospective jurors were identified only by numbers and the anonymity of the jurors was preserved throughout the trial and continues to be preserved.

On his questionnaire, Juror # 82 had provided sworn answers that he would accept the presumption of innocence (Question # 108), require the prosecution to bear the burden of proof beyond a reasonable doubt (Question # 109), base his verdict solely on the evidence or lack of evidence presented in court (Question # 110), and was otherwise able to serve as a fair and impartial juror (Questions 113-115). (Juror # 82 Questionnaire at 40-41.) In response to Question 45(f), Juror # 82 indicated that he had not been in prison, although he disclosed that his brother had been in prison for a drug conviction. (Id. at 18.) Juror # 82 acknowledged in response to Question 47 that his brother "committed a crime and he did the time," and indicated there was nothing about his brother's conviction and imprisonment that would prevent him from being a fair and impartial juror. (Id.) In response to Question 27, which specifically inquired into any military disciplinary actions, Juror # 82 disclosed that he had been subject to an Article 15 disciplinary action. (Id. at 13.) During the course of follow up voir dire questioning by the Court, Juror # 82 disclosed that he received an Article 15 and lost a stripe for disobeying an order to march, and that his brother had been imprisoned for three years; Juror # 82 testified that nothing about this would prevent him from being a fair and impartial juror in this case. (Tr. 397-99.) Defendants allege that these responses were misrepresentations that concealed bias against the defendants.

B.

On June 3, 2005, counsel for Stewart wrote the Court requesting that it "follow-up" and inquire into allegations made by Juror # 39. (6/03/05 Shellow-Lavine Ltr. at 1.) The letter indicated that co-defendants Sattar and Yousry joined in the request. Id.

In March 2005, following the verdict, one attorney for Stewart was contacted by "three persons (not affiliated with the lawyers in this case) alerting [him] that a juror wanted to speak to [him]." (6/02/2005 Dratel Decl. at ¶ 2.) One of these persons was Steven J. Masef, Esq., who was acting as informal counsel for Juror # 39. (Id.) Starting on March 3, 2005, counsel for Stewart held several phone calls with Mr. Masef, culminating in an April 26, 2005 meeting among three defense counsel, an additional lawyer they had brought with them, Mr. Masef, and Juror # 39. (Id. at ¶ 3-5.)

Through the phone calls with Mr. Masef, Stewart's defense counsel was allegedly told that Juror # 39 "had been one of the two `holdouts' on the jury" and that "a person not on the jury had said to her at some point, in sum and substance, `So you're the holdout? If you let the terrorist go, you're a terrorist yourself.'" (Id. at ¶ 4.) At one point, Mr. Masef indicated to Stewart's counsel that this person "was a court officer or court personnel." (Id.) However, at the April 26 meeting, Juror # 39 allegedly told defense counsel that "on the last day of deliberations, as she was getting out of the van in which she had been transported to the courthouse, someone from outside — by which she meant someone not on the jury — identified her and said `that's the holdout.'" (6/03/05 Shellow-Lavine Ltr. at 2.) Juror # 39 also reported that another juror had told her earlier in deliberation "that it would be her fault if anyone died as a result of this trial." (Id.) Juror # 39 added that "maybe she wasn't thinking clearly when she voted to convict the defendants." (Id.)

Earlier, on February 23, 2005, Juror # 39 had contacted the Jury Administrator and said she wanted to write a letter to the Court about something that happened in the jury room. The Court brought that contact to the attention of the parties. On March 25, 2005, after phone conversations between Mr. Masef and defense counsel, of which the Court was not informed, Juror # 39 sent a letter to the Court, which was filed under seal attached to an Order from this Court dated April 1, 2005. The typewritten letter was plainly written with the assistance of somebody other than Juror # 39. On its face, the March 25 letter describes the course of internal juror deliberations, and does not refer to any of the alleged outside comments discussed above. The letter states that Juror # 39's verdict "came about only as a result of the fear and intimidation [she] was made to feel for [her] life during the course of deliberations." (3/25/05 Juror # 39 Ltr. at 1.) The letter complains of "a relentless verbal assult [sic] on my person and my position until I had no other choice but to relent because of fear I felt." (Id.)

The alleged "hold out" comment from someone outside of the jury would have occurred during a period of heightened jury security following a January 25, 2005 incident in one of the vans transporting the jurors home. (Tr. 12624.) After the incident, the Court conducted in the presence of representative counsel of the parties an individual voir dire of each the jurors in the van (which did not include Juror # 39) to ensure that nothing about the incident would affect the juror's decision. (Tr. 12624-94.) In addition, the Court assigned a marshal to accompany the jurors in the vans to ensure that no inappropriate conduct occurred. (Tr. 12888.)

On ...