Haouari v. U.S., 04 CIV.4502(JFK).

• Decision Date: 02 May 2006
• Docket Number: No. 00 CR.15 (JFK).,No. 04 CIV.4502(JFK).,04 CIV.4502(JFK).,00 CR.15 (JFK).
• Citation: 429 F.Supp.2d 671
• Parties: Mokhtar HAOUARI, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of New York

Page 671

429 F.Supp.2d 671

Mokhtar HAOUARI, Petitioner, v. UNITED STATES of America, Respondent.

No. 04 CIV.4502(JFK).

No. 00 CR.15 (JFK).

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

May 2, 2006.

Joyce C. London, Esq., New York, for Petitioner Mokhtar Haouari.

David N. Kelley, United States Attorney for the Southern District of New York, New York, Of Counsel: AUSA Michael Farbiarz, AUSA Robin L. Baker, for Respondent United States of America.

OPINION and ORDER

KEENAN, District Judge.

Before the Court is the petition of Mokhtar Haouari ("Haouari") to vacate his conviction pursuant to 28 U.S.C. § 2255. For the reasons that follow, the petition is denied.

BACKGROUND

I. PROCEDURAL HISTORY

This case involves the so-called "Millennium Plot" to bomb Los Angeles International Airport ("LAX") in late December 1999. On April 11, 2001, Haouari was charged in seven counts of the fourth superseding indictment filed in connection with this matter. Count One charged Haouari under 18 U.S.C. § 371 with conspiracy to provide material support and resources to terrorists (18 U.S.C. § 2339A), to commit arson and bombing of a building in interstate commerce (18 U.S.C. § 844(i)) and to commit terrorist acts transcending international boundaries (18 U.S.C. § 2332b(a)(1)(B)). Count Two charged him under 18 U.S.C. §§ 2339A and 2 with providing material support and resources to terrorists to be used for arson and bombing of a building in interstate commerce (§ 844(i)) and terrorist acts transcending international boundaries (§ 2332b(a)(1)(B)). Count Three charged him under 18 U.S.C. § 371 with conspiracy to commit bank fraud and fraud involving access devices and identification documents (18 U.S.C. §§ 1028(a)(2), 1028(a)(7), 1029(a)(2), 1029(a)(5) and 1344). Counts Four and Five charged him under 18 U.S.C. §§ 1028(a)(2), 1028(a)(7) and 2 with identification document fraud. Counts Six and Seven charged him under 18 U.S.C. §§ 1029(a)(2), 1029(a)(5) and 2 with access device fraud.

Trial commenced on June 26, 2001. Before the case went to the jury, the Government agreed to withdraw those portions of Counts One and Two that rested on the commission of terrorist acts transcending international boundaries (§ 2332b(a)(1)(B)). The Government also agreed not to proceed on Count Seven. On July 13, 2001, the jury convicted Haouari on Count One and Counts Three through Six. He was acquitted on Count Two.¹ On January 16, 2002, the Court sentenced Haouari to the following consecutive terms of imprisonment: 60 months on Count One, 60 months on Count Three, 36 months on Count Four, 36 months on Count Five and 96 months on Count Six. The total sentence was 24 years, or 288 months.

Haouari filed a timely appeal. On January 27, 2003, the Second Circuit affirmed his conviction and sentence. United States v. Meskini, 319 F.3d 88 (2d Cir. 2003). The Circuit's primary concern was Section 3A1.4 of the Sentencing Guidelines ("Guidelines"), which specifies an increase in both offense level and criminal history level for felonies involving or intending to promote terrorism. Haouari had argued that this Court's application of Section 3A1.4 at sentencing resulted in impermissible double counting. The Circuit rejected this argument. Id. at 91-92. The Circuit weighed Haouari's remaining claims and found them without merit. Id. at 92. Some of these claims resurface in the instant § 2255 petition. On May 27, 2003, the Supreme Court denied Haouari's application for a writ of certiorari. Haouari v. United States, 538 U.S. 1068, 123 S.Ct. 2240, 155 L.Ed.2d 1125 (2003).

II. FACTS

The evidence at trial established that Haouari, Abdelghani Meskini ("Meskini") and Ahmed Ressam ("Ressam") conspired to bomb LAX. The plot unraveled on December 14, 1999, when Ressam was caught with explosives in his car at the border station in Port Angeles, Washington. The evidence included the testimony of Ressam and Meskini; the testimony of law enforcement personnel; physical evidence seized from the three conspirators; telephone, credit card and bank records; and recorded conversations between Haouari and Meskini after Ressam's arrest.

A. Pre-Millennium Plot Activities

In 1994, Haouari met Ressam, a fellow Algerian, in Montréal. (SA 405-09.)² Between 1996 and 1997, Ressam sold Haouari stolen identification documents, charge cards and a phony Canadian passport. (SA 410-11, 499-500.) In 1998, Ressam left for Afghanistan to attend terrorist training camps. (SA 415-16.)

Months before Ressam's departure, Haouari had met up with Meskini, another Algerian, who had arrived in Montréal in October 1997. (SA 87-90.) On various occasions between 1997 and 1999, Haouari provided Meskini with fake Canadian passports and other forms of identification, some of which Meskini used to commit bank and credit card fraud. (SA 111-98, 234-36.) By July 1999, Meskini had settled in Brooklyn, New York. (SA 165.) The next month, Haouari and Meskini conversed about an Algerian man who would be coming to New York to meet some people. Haouari said that the man "used to be in Bosnia," which Meskini understood to mean that he had participated in jihad. (SA 229-32.) Haouari asked Meskini if the man could stay with Meskini in his apartment. (SA 229-30.) Meskini agreed, but the visit never came to pass. (SA 231.) The man was Ressam.

From about April 1998 until 1999, Ressam attended terrorist training camps in Afghanistan. He received instruction in light weapons, the making and use of explosive devices, sabotage, target-selection, urban warfare, tactics (including assassination) security and the use of poisons and poisonous gas. (SA 418-27, 488-94, 506-07, 550-52.) In early 1999, Ressam returned to Canada. (SA 427.) He carried with him chemical substances, a notebook containing instructions on making explosives and $12,000 in cash. (SA 429.) At this time, Ressam devised his plan for bombing LAX during the Millennium celebration. He secured identification under the alias "Benni Noris," obtained bomb ingredients and components, and made several powerful explosives and four timing and power units for an explosive device. (SA 438-39, 452-54, 459-65, 469-76, 482-87.) By the summer of 1999, Ressam wanted to obtain a credit card. He contacted Haouari and asked if he could "pretend [to be] working" in Haouari's store, Artisanat Nord-Sud, in order to qualify for a credit card. Haouari agreed. (SA 431-32.) He filled out an application for Ressam under the latter's alias, "Benni Noris." (SA 431-32, 478-79.) Ressam received the credit card. He was carrying this card on the day that he was arrested. (SA 480-82.)

B. The Planning of the LAX Attack

In October 1999, Ressam discussed with Haouari the possibility of an "operation" against the "biggest enemy," the United States. (SA 436.) Referring to the bombings of the American embassies in Nairobi, Kenya and Dar es Salaam, Tanzania on August 7, 1998, Ressam opined that it would have been preferable to have carried out the bombings inside the United States. (SA 458-59.) Ressam testified that Haouari "[g]enerally speaking ... was in agreement." (SA 459.) In late October or early November 1999, at the request of Haouari and others, Ressam agreed to open a store in Montreal under his alias. Ressam's store would be used as a source of credit card and bank card information for fraudulent activities. (SA 433-35, 463, 468, 476.) Haouari said that after four to six months of receiving proceeds from this store, he was "interested" in going to Afghanistan, as Ressam had done. (SA 435-36.)

In late October or early November 1999, Haouari told Ressam that he had "a friend" in the United States who was "very eager to join the jihad." (SA 434-35.) This was Meskini. Ressam replied that, if Haouari knew the friend very well and trusted him, it would not be a problem to get him a visa. (SA 435.)

At the beginning of November, Ressam told Haouari to give him some money from the store for "some important business" in the United States. (SA 447.) A few days later, Haouari gave Ressam $3000 CAD. (SA 448-49.) Haouari offered to connect Ressam with his "friend" (Meskini). Ressam replied, "Mokhtar, I'm not going to America for tourism. I am going on some very important and dangerous business." Haouari told Ressam that it was "no problem," that his friend was involved in bank fraud and that the friend could help him. Ressam asked Haouari to talk to the friend and explain the matter "very well" to him. (SA 447-49.) Ressam testified at trial that he told Haouari that the work was "dangerous" so that Haouari would "know what kind of work" Ressam would be doing. Ressam conveyed the nature of the work, but he withheld the exact target from Haouari "for security reasons." (SA 448.) Haouari told Ressam, "My friend Abdelghani [Meskini] will help you." Ressam replied, "Mokhtar, did you explain to him well the business in this work?" Haouari assured Ressam that Meskini had been informed about the "business." (SA 449.)

C. Initial Preparations

Around the time of the foregoing conversation with Haouari, Ressam called friends in Afghanistan and Great Britain in order to obtain visas for Meskini and another friend who helped prepare for the attack. (SA 430, 446, 450, 461, 471-72.) When Ressam received the blank visas, he gave them to Haouari to fill them in and make stamps for them. (SA 450-51.) Haouari then made a phony Quebec driver's license that Ressam said he needed. (SA 452-53, 459, 534-35, 542-43.) Haouari also agreed to provide Ressam with an Algerian passport so that Ressam could return to Algeria after he was "through with America." (SA 452-54.) Ressam planned to pick up the passport in Montreal upon his return from the United States. (SA 453-54, 475-76, 534-35.)

Around November 17, 1999, Ressam flew from Montreal to Vancouver. (SA 459-60.) He said that he would call Haouari and let him know when to contact his friend (Meskini). (SA 461.) Ressam combined the $3000 CAD he had received from...