United States v. Kassar
| Decision Date | 24 October 2008 |
| Docket Number | No. S3 07 CR 354(JSR).,S3 07 CR 354(JSR). |
| Citation | 582 F.Supp.2d 498 |
| Parties | UNITED STATES of America v. Monzer AL KASSAR, Tareq Mousa Al Ghazi, and Luis Felipe Moreno Godoy, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Leslie C. Brown, United States Attorney, Southern District New York, Brendan Robert McGuire, U.S. Attorney's Office, SDNY (St. Andrew's), New York, NY, for United States of America.
Ira Lee Sorkin, Elliott Zvi Stein, Nicole Pappas De Bello, Shirley Othmana Saed, Dickstein Shapiro LLP, Roger Lee Stavis, Gallet Dreyer & Berkey LLP, New York, NY, for Defendants.
The Classified Information Procedures Act ("CIPA"), which "establishes procedures for handling classified information in criminal cases," United States v. Aref, 533 F.3d 72, 78 (2d Cir.2008), requires a defendant to provide written notice of his or her intention to disclose or use classified information in pre-trial proceedings or at trial. 18 U.S.C. app. 3 § 5. Upon a defendant's written notice, the Government "may request the court to conduct a hearing to make all determinations concerning the use, relevance, or admissibility of classified information," id. § 6, pursuant to the standards of the Federal Rules of Evidence. See United States v. Wilson, 750 F.2d 7, 9 (2d Cir.1984).
On October 2, 2008, defendants Monzer Al Kassar, Tareq Mousa Al Ghazi, and Luis Felipe Moreno Godoy provided written notice pursuant to Section 5 of CIPA regarding their intention to introduce certain classified information at the trial in this matter. On October 14, 2008, the Government moved for an in camera hearing pursuant to Section 6 of CIPA to address the use, relevance, and admissibility of the classified information that was the subject of defendants' Section 5 Notice, and on October 20, 2008, the Court conducted such a hearing. After hearing from counsel for both sides at the sealed hearing, the Court also permitted counsel for defendants to make a further, ex parte proffer as to the purported relevance of the classified information to their defense in this case.1 See sealed transcript dated October 20, 2008.
The classified information proffered by defendants can be summarized in this public document as relating to past contact between the defendants and government officials that, defendants argue, make it more likely than otherwise that defendants would not have entered into the conspiratorial agreement alleged in the Indictment.2 But the classified information itself, relating to contacts that not only occurred many years prior to the events at issue in this case but that themselves related to wholly different events, has no such probative value and is, instead, only likely to inject irrelevancy and confusion into this case if allowed in evidence. See Fed.R.Evid. 401, 403.
Moreover, although couched in terms of rendering less likely than otherwise that the defendants would have entered the alleged conspiracy, the proffer suffers from many of the same infirmities noted by the Second Circuit in United States v. Giffen, 473 F.3d 30, 43 (2d Cir.2006), where the Court of Appeals expressed "great difficulty" with a defense that would "grant any criminal carte blanche to violate the law should he subjectively decide that he serves the government's interests thereby." Id. (quoting United States v. Wilson, 721 F.2d 967, 975 (4th Cir.1983)).
Stripped to its essence the proffered evidence comes down to the assertion that, because the defendant had years previously acted in a particular way in analogous circumstances, the jury should give more credit to his assertions that he did so here. But the situations are not, on their face, analogous, and it would require a trial within a trial before the jury could determine whether there was any meaningful analogy at all. Moreover, even if there were, the Federal Rules of Evidence do not permit proof of prior acts for this purpose. See Fed.R.Evid. 404, 405; see also United States v. Wilson, 586 F.Supp. 1011, 1016 (S.D.N.Y.1983) (Weinfeld, J.). Indeed, were defendants permitted to introduce the classified information in question "to disprove knowledge or intention [or here, absence of a meeting of the minds], which are elements of most crimes, the exception of Rule 405(b) would swallow the general rule of 405(a) that proof of specific acts is not allowed." United States v. Doyle, 130 F.3d 523, (2d Cir. 1997).
Nor is the classified information admissible as evidence of defendants' habit or "course of conduct" pursuant to Fed. R.Evid. 406. Habit describes a "person's...
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