395 F.Supp.2d 79 (S.D.N.Y. 2005), S1 02 CR. 395, United States v. Sattar

Docket Nº:S1 02 CR. 395(JGK).
Citation:395 F.Supp.2d 79
Party Name:UNITED STATES of America v. Ahmed Abdel SATTAR, a/k/a "Abu Omar," a/k/a "Dr. Ahmed," Lynne Stewart, and Mohammed Yousry, Defendants.
Case Date:October 24, 2005
Court:United States District Courts, 2nd Circuit, Southern District of New York
 
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Page 79

395 F.Supp.2d 79 (S.D.N.Y. 2005)

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.

Oct. 24, 2005

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[Copyrighted Material Omitted]

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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 Defendants.

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.

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OPINION & ORDER

KOELTL, District Judge.

On February 10, 2005, after a lengthy trial, a jury found each of the defendants--Ahmed Abdel Sattar ("Sattar"), Lynne Stewart ("Stewart"), and Mohammed Yousry ("Yousry")--guilty on each of the counts in which they were charged in the seven-count superseding indictment ("S1 Indictment").

Count One of the S1 Indictment charged Sattar, Stewart, and Yousry with conspiring to defraud the United States in violation of 18 U.S.C. § 371. Count Two charged Sattar with conspiring to murder and kidnap persons in a foreign country in violation of 18 U.S.C. § 956. Count Three charged Sattar with soliciting persons to engage in crimes of violence in violation of 18 U.S.C. § 373. Count Four charged Stewart and Yousry with conspiring, in violation of 18 U.S.C. § 371, to provide and conceal material support to be used in preparation for, and in carrying out, the conspiracy alleged in Count Two. Count Five charged Stewart and Yousry with a substantive count of providing and concealing material support to the Count Two conspiracy, in violation of 18 U.S.C. §§ 2339A and 2. Counts Six and Seven charged Stewart with making false statements in violation 18 U.S.C. § 1001. See United States v. Sattar, 272 F.Supp.2d 348 (S.D.N.Y.2003) (" Sattar I "); United States v. Sattar, 314 F.Supp.2d 279 (S.D.N.Y.2004) (" Sattar II "). The jury found that the conspiracy charged in Count Two was solely a conspiracy to murder--and not to kidnap persons--in a foreign country, and that the crimes solicited as charged in Count Three were murder and conspiracy to murder.

At the conclusion of the Government's case, all defendants moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure on the grounds that the evidence was insufficient to sustain a conviction. At that time, Stewart argued, among other things, that the evidence was insufficient because the conspiracy to murder and kidnap persons in a foreign country had not been proved because the locus of the murder or kidnapping might be a place, such as Palestine, that is not an internationally recognized country. At the Government's request, the Court reserved decision on the motions and the defendants proceeded with their defense, including the testimony of each of the three defendants. At the conclusion of all of the evidence and after the jury verdict, the defendants again moved for judgment of acquittal, and the Court reserved judgment.

Having obtained a timely extension of time to file motions, Stewart has filed a renewed motion for a judgment of acquittal pursuant to Rule 29, for a new trial pursuant to Federal Rule of Criminal Procedure 33, for arrest of judgment pursuant to Federal Rule of Criminal Procedure 34, and in the alternative, for discovery on Stewart's selective prosecution claim. Defendants Sattar and Yousry join in the motions to the extent that they affect them. For the reasons stated below, the motions are denied.

I.

Each of the defendants has moved for a judgment of acquittal on each of the counts in which they are charged, but the only substantive arguments with respect to the insufficiency of the evidence have been raised by Stewart with respect to the Counts in which she is charged--namely Counts One, Four, Five, Six, and Seven.

A.

To succeed on a motion for a judgment of acquittal pursuant to Rule 29 of the Federal Rule of Criminal Procedure,

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the defendant must show that no rational trier of fact, viewing the evidence in the light most favorable to the Government, could have found the defendant guilty beyond a reasonable doubt of the essential elements of the crimes charged. United States v. Desena, 287 F.3d 170, 176 (2d Cir.2002). A defendant making an insufficiency claim "bears a very heavy burden." Id. at 177; see also United States v. Macklin, 927 F.2d 1272, 1277 (2d Cir.1991) (collecting Second Circuit cases).

In considering the sufficiency of the evidence, the Court must "view the evidence presented in the light most favorable to the government, and ... draw all reasonable inferences in its favor." United States v. Autuori, 212 F.3d 105, 114 (2d Cir.2000). The Court must analyze the pieces of evidence "not in isolation but in conjunction," United States v. Matthews, 20 F.3d 538, 548 (2d Cir.1994), and must apply the sufficiency test "to the totality of the government's case and not to each element, as each fact may gain color from others," United States v. Guadagna, 183 F.3d 122, 130 (2d Cir.1999).

"[T]o avoid usurping the role of the jury," the Court must "not substitute [its] own determinations of credibility or relative weight of the evidence for that of the jury." Autuori, 212 F.3d at 111 (internal citation omitted). Thus, the Court must "defer to the jury's determination of the weight of the evidence and the credibility of the witnesses, and to the jury's choice of the competing inferences that can be drawn from the evidence." United States v. Morrison, 153 F.3d 34, 49 (2d Cir.1998). The jury's verdict "may be based entirely on circumstantial evidence." United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir.1995); see also United States v. Aleskerova, 300 F.3d 286, 292 (2d Cir.2002) (elements of conspiracy can be established by circumstantial evidence); Macklin, 927 F.2d at 1277 (same).

B.

To the extent that the defendant also makes a motion pursuant to Rule 33 of the Federal Rule of Criminal Procedure based on an alleged insufficiency of the evidence, the standard is also an exacting one. A court will grant a new trial only "in the most extraordinary circumstances." United States v. Locascio, 6 F.3d 924, 949 (2d Cir.1993) (citing United States v. Imran, 964 F.2d 1313, 1318 (2d Cir.1992)). In evaluating the sufficiency of the evidence for purposes of Rule 33, the Court "must examine the entire case, take into account all facts and circumstances, and make an objective evaluation." United States v. Ferguson, 246 F.3d 129, 134 (2d Cir.2001) (internal citation omitted). There must be "a real concern that an innocent person may have been convicted." Id. While the Court has "broader discretion to grant a new trial under Rule 33 than to grant a motion for acquittal under Rule 29," it must nonetheless "exercise the Rule 33 authority sparingly and in the most extraordinary circumstances." Id. (internal citation and quotation marks omitted).

C.

In deciding the motions to dismiss made at the conclusion of the Government's case, the Court must decide the motions based on the evidence at the time the ruling was reserved. See Fed.R.Crim.P. 29(b). In deciding the subsequent motions, the Court can consider all of the evidence, and Stewart refers in her written submission to the "totality of the evidence." Stewart Mem. at 8. Stewart specifically relies on her testimony that she was only engaged in the zealous representation of her client

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and was not attempting to deceive the Government. Stewart Mem. at 51.

In considering the totality of the evidence, the jury is entitled to disbelieve a defendant's testimony and "use its disbelief to supplement the other evidence against [the defendant]," United States v. Stanley, 928 F.2d 575, 577 (2d Cir.1991), and may in light of all of the evidence conclude that the defendant's testimony was false and thereby infer the defendant's guilt. See Morrison, 153 F.3d at 50; United States v. Friedman, 998 F.2d 53, 57 (2d Cir.1993). This decision therefore focuses on the evidence at the conclusion of the Government's case and refers to the remainder of the evidence, particularly Stewart's testimony, as it relates to her motions after the conclusion of all of the evidence.

II.

Count One of the S1 Indictment alleges that, from about June 1997 through about April 2002, defendants Sattar, Stewart, and Yousry, as well as Sheikh Omar Abdel Rahman ("Abdel Rahman") and Rifa'i Ahmad Taha Musa, a/k/a "Abu Yasir" ("Taha"), together with others known and unknown, conspired to defraud the United States, in violation of 18 U.S.C. § 371, by obstructing the Department of Justice and the Bureau of Prisons in the administration and enforcement of the Special Administrative Measures ("SAM's") applicable to the imprisoned Sheikh Abdel Rahman. Stewart argues that there was insufficient evidence both of the existence of the Count One conspiracy and of her specific intent to join the conspiracy. In particular, Stewart argues that her actions were not calculated to deceive the Government, but rather to defy it openly. None of these arguments have merit.

The Court instructed the jury that, "in this case, the term 'conspiracy to defraud the United States' refers to charges that the defendants agreed to [employ] deceitful or dishonest means toward the Department of Justice and its agency, the Bureau of Prisons, in order to obstruct, interfere with, impair, impede, or defeat the administration and enforcement of Special Administrative Measures upon inmate Sheikh Omar Abdel Rahman." (Tr. 12306-07.) See...

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