U.S. v. Salameh, s. 94-1312
| Decision Date | 09 May 1996 |
| Docket Number | 94-1313CON,Nos. 94-1312,s. 94-1312 |
| Citation | 84 F.3d 47 |
| Parties | UNITED STATES of America, Appellee, v. Mohammed A. SALAMEH, Nidal Ayyad, Mahmoud Abouhalima, also known as Mahmoud Abu Halima, and Ahmad Mohammad Ajaj, also known as Khurram Kham, Defendants-Appellants. to 94-1315CON. |
| Court | U.S. Court of Appeals — Second Circuit |
Lawrence M. Stern, New York City, for defendant-appellant Abouhalima.
Jeremy Schneider, Rothman, Schneider, Soloway & Stern, New York City, for defendant-appellant Ayyad.
Frank Handelman, New York City, for defendant-appellant Salameh.
Maranda Fritz, Fritz & Miller, New York City, for defendant-appellant Ajaj.
J. Gilmore Childers, Asst. U.S. Atty., New York City, for appellee.
Before: NEWMAN, Chief Judge, McLAUGHLIN and CABRANES, Circuit Judges.
Pending before the Court is a motion to reinstate appeals by four defendants convicted of various offenses in connection with the April 26, 1993, bombing of the World Trade Center. Following conviction by a jury, the four defendants were sentenced on May 24, 1994. All four defendants filed notices of appeal, and this Court established a briefing schedule.
On June 23, 1995, defendants Abouhalima and Ajaj filed in this Court separate motions to remand their cases to the District Court for consideration of motions they wished to present to the District Court seeking to vacate the judgments of conviction on various grounds. The motions were heard on July 18, 1995, with counsel for the movants and counsel for defendants Salameh and Ayyad in attendance. Though the four defendants initially took differing positions with respect to the appropriateness of an immediate remand, by the end of the hearing, all four defendants requested this Court to remand their cases to the District Court. Accordingly, on July 18, 1995, this Court issued an order (the "Remand Order")
Several events occurred thereafter in the District Court, but for purposes of the pending motion, we need recount only the following. Counsel for Ajaj informed Judge Duffy that the motion papers she had previously presented to the Court were preliminary and that she required additional time to present a final motion. At a conference with counsel on July 26, 1995, Judge Duffy informed counsel that all motions based on newly discovered evidence were denied because the proffered evidence was not new. Turning next to the requests of defendants Abouhalima, Ayyad, and Ajaj for a hearing on their claims of ineffective assistance of trial counsel, Judge Duffy scheduled a hearing for August 7, 1995. The District Judge also stated that trial counsel would be called to testify and that the claim of ineffective assistance of trial counsel resulted in a waiver of the attorney-client privilege as to conversations between trial counsel and their clients.
Abouhalima and Ajaj then filed petitions in this Court for writs of mandamus, seeking various forms of relief. On August 9, 1995 this Court issued the following order (the "Denial of Mandamus Order"):
The mandamus petitions issued in the captioned cases hereby are denied, with leave to renew in the event that the district court fails to:
1. receive the government's written responses to the motions that were the subject of our remand order of July 18, 1995, and
2. conduct such evidentiary hearings as it may deem necessary to determine the issues presented no earlier than 30 days following the date the responses are received, and
3. rule specifically on each issue raised by the said motions.
On October 16, 1995, Ajaj filed in the District Court a final version of his motion challenging his conviction. On November 16, 1995, the Government filed its responses to the motions then pending in the District Court.
On November 17, 1995, Judge Duffy held a conference with counsel. He initially stated that he had received the case back from the Court of Appeals "without any instructions as to why it was being remanded." Then, referring to this Court's Denial of Mandamus Order, he stated,
Judge Duffy then discussed what he determined to be the two principal claims underlying the defendants' motions for a new trial--newly discovered evidence and incompetency of trial counsel. He reiterated his previously expressed view that the claims based on newly discovered evidence had presented nothing new, although he also stated that he would not "start" with that issue, thereby implying that he had not yet finally ruled on that aspect of the claims. Turning to the ineffective assistance of counsel claim, Judge Duffy expressed concern that the presentation of this claim would inevitably disclose proffers of evidence that would risk prejudicing the jury pool from which juries would be selected for forthcoming trials of other defendants charged in connection with the World Trade Center bombing. Because of this concern, he offered the defendants the choice of either proceeding with their counsel claims at a hearing on December 4, 1995, or else waiting for a considerable period of time, which he described as "at least a year."
On April 16, 1996, all four defendants jointly filed the pending motion to reinstate their appeals from the judgments of conviction. Alternatively, they seek reassignment of their District Court motions to a different judge.
Initially, we deem it appropriate to comment on certain aspects of our initial remand ruling and our subsequent ruling on the mandamus petitions. The Remand Order specified only that the case was remanded "for further proceedings." Though that open-ended direction evidently afforded the District Court less guidance than it deemed appropriate, it permitted the Court to entertain whatever collateral attacks upon the judgments of conviction that the defendants wished to present. Rather than prescribe a precise course for the District Court to follow, the Remand Order permitted the District Court itself to determine the appropriate course of "further proceedings."
The order denying the mandamus petitions was perceived by the District Court as an order that is "in fact" a mandamus since it specified three circumstances under which the defendants would have leave to renew their petitions. The Denial of Mandamus Order, however, was not a mandamus order. The petitions seeking mandamus were denied, not granted. This Court, like all courts, is capable of crafting orders that convey obligatory directions to those parties properly subject to the Court's jurisdiction, including, where appropriate, judicial officers subject to this Court's mandamus jurisdiction.
Though the Denial of Mandamus Order did not issue a writ of mandamus, it employed language frequently used by courts to state the conditions under which the party seeking a writ of mandamus has leave to reapply for the writ. Such language is typically used when mandamus is sought to secure judicial action that has long been delayed. Rather than choose between the extremes of ordering immediate action, which might unduly disrupt the conduct of business in a district court, and denying the writ without comment, which might be misperceived as tolerating the delay that has occurred, an appellate court will sometimes deny the petition "without prejudice to renewal" in the event that the matter under advisement in the district court is not decided within a stated period of time, often 60 or 90 days. See, e.g., NLRB v. Long Island College Hospital, 20 F.3d 76, 80 (2d Cir.1994). That language does not order action in the district court, but it does convey the appellate court's preference that action should be taken. Usually the preferred action is taken. If not, the petitioner may return to the appellate court, at which time the appropriateness of then issuing a writ of mandamus receives plenary consideration.
In the pending matter, in which jurisdiction was originally transferred to this Court by the filing of notices of appeal, the parties that sought and were denied a writ of mandamus have elected not to renew their applications, but instead, joined by their co-defendants, have decided to seek the remedy of reinstating their appeals. That choice of remedy encounters the Government's threshold objection that we lack jurisdiction to grant the requested relief. The...
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