In re Extradition Omar Ameen

Decision Date06 May 2019
Docket NumberNo. 2:18-mj-152-EFB,2:18-mj-152-EFB
Parties In the MATTER OF the EXTRADITION OF Omar Abdulsattar AMEEN to the Republic of Iraq
CourtU.S. District Court — Eastern District of California

Audrey Benison Hemesath, Heiko Philipp Coppola, United States Attorney's Office, Sacramento, CA, Christopher Jackson Smith, John David Riesenberg, U.S. Department Of Justice, Washington, DC, for Plaintiff.

Benjamin David Galloway, Rachelle Barbour, Douglas J. Beevers, Office Of The Federal Public Defender, Sacramento, CA, for Defendant.

MEMORANDUM AND ORDER

EDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE

Omar Abdulsattar Ameen1 ("Ameen") has, through his counsel, filed: (1) a motion for the production of search warrants (ECF No. 111 ); (2) a motion for protective order (ECF No. 112 ); and (3) a motion to compel (ECF No. 116 ). The government has filed an opposition addressing each motion (ECF No. 120 ) and Ameen has filed a reply thereto (ECF No. 123 ).2 The court, for the reasons stated hereafter, denies the motion to compel and motion for production of search warrants. The motion for protective order is granted in part.3

Motion to Compel
I. Background
A. Ameen's Position

In his motion, Ameen identifies various categories of material that he contends is favorable to his defense and must be disclosed by the government pursuant to Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).4 Those alleged categories are as follows:

1. Person A 5

First, Ameen requests that the government provide information regarding the circumstances under which a statement was given by an individual – whom the court will refer to as "Person A"6 – to the Federal Bureau of Investigation ("FBI"). He contends that his own investigative efforts indicate that this witness may have been compelled or coerced into giving statements regarding Ameen's involvement in the murder. ECF No. 116 at 22. Specifically, Ameen claims that this witness may have a "close family tie" to a member of ISIS in Iraqi custody. Id. Ameen surmises that Person A "may have been compelled to speak to Iraqi or U.S. investigators out of fear that he/she would be implicated with ISIS through his/her close family member." Id. He argues that the government is in possession of information indicating what benefits, coercion, or compulsion were brought to bear on this witness. Id. at 23-24.

Ameen also states that a complete understanding of the circumstances of Person A's initial FBI interview is critical to contextualizing subsequent investigative discrepancies. Id. at 30. He points out that the FBI 3027 from October 23, 2017 – the date the FBI interviewed Person A in Iraq – contains no mention of photographic identification. Id. Ameen's counsel asked the government what photograph, if any, was shown to Person A in the October 23, 2017 interview. Id. The government indicated a specific photograph was shown to the witness, and Ameen has reproduced that photograph as an exhibit to the current motion. ECF No. 116-1 at 28 (Exhibit K, line 2).

In April of 2018, Person A went to an Iraqi court and was shown an array which contained photographs of Ameen and other men. ECF No. 116 at 30. Those photographs were reproduced in the extradition request where, Ameen notes, two of the photographs of other men are dated May 2018 – one month after the alleged identification in the Iraqi court. Id. ; ECF No. 22-1 at 64-67. Also in May of 2018, the FBI produced a new report which memorialized Person A's October 23, 2017 interview. ECF No. 116 at 30. Ameen questions why the report was composed months later and only after the witness testified in the Iraqi court. Id. The report states, for the first time, that the witness was shown multiple photographs in October 2017 and picked Ameen out of an array (the photograph the witness chose is the same one identified supra in Exhibit K). Id. Ameen states that the other array photographs used by the FBI have never been produced to the defense. Id.

Finally, Ameen argues that Person A's statement to the FBI in October of 2017 is, in many respects, inconsistent with their later statement to the Iraqi court. Id. at 31. The court finds it unnecessary to reproduce all of the alleged discrepancies here. Suffice it to say, Ameen believes Person A's October 2017 statement is wholly unreliable. Id. He re-emphasizes his theory that Person A gave the statements under some form of coercion. With that predicate, Ameen argues that "[e]vidence possessed by the U.S. Government supporting the investigation into [Person A] or their close family member as a member of ISIS or any other terrorist organization explains his/her inconsistent statements." Id. at 33.

2. Prudential Search

Second and more broadly, Ameen demands that the government – represented in this case by the United States Department of Justice – request a "prudential search"8 of the United States Intelligence Community ("IC"). Id. at 26. He claims that "[t]here is reason to believe that the Intelligence Community (IC) has exculpatory material regarding Mr. Ameen." Id. Ameen goes on to assert that "the government has repeatedly conceded, now on the record, that the [intelligence community] has exculpatory evidence corroborating Mr. Ameen's alibi."9 ,10 Id. at 27. In specific terms, Ameen seeks:

IC information rebutting claims that he is an ISIS or Al-Qaeda in Iraq terrorist, and any information rebutting the Iraqi filing are clearly exculpatory. If the IC has no information to show that Mr. Ameen is a member of ISIS or an Al-Qaeda in Iraq terrorist, that is likewise exculpatory, and the defense requests a statement to that effect, a stipulation, or a certificate of no record.

Id. at 27-28.

3. Iraqi Government Material

Third, Ameen contends that the government's burden to produce favorable information extends to any documents it has obtained from the Iraqi government or Iraqi law enforcement. Id. at 28. He argues that the government's investigation into him is "intermingled" with the Iraqi investigation. Id. Ameen claims that the FBI spoke with "at least four witnesses from various branches [of] Iraqi law enforcement" in the course of its own investigation. Id. He also claims that the FBI received "statements and documents" relevant to this matter which were generated by Iraqi law enforcement. Id. Finally, Ameen argues that, even if the government does not currently possess exculpatory information derived from the Iraqi state, this court has the authority to order the government to obtain it. Id. at 29.

4. Government Evidence that Ameen was in Turkey in June 2014

Ameen states that his argument against a finding of probable cause will rest, in part, on a witness who will testify that he was in Mersin, Turkey at the time of the murder. Id. at 34. Ameen anticipates that the government will argue that this witness (who, owing to visa issues, is unlikely to testify in-person in this matter) lacks credibility. Id. He also anticipates that the government will, based on the foregoing credibility attack, move to exclude the witness testimony as "uncorroborated." Id. As a consequence, Ameen argues that the government must provide any clear corroborative material in its possession. Specifically, Ameen contends that "[t]he Government possesses a corroborating statement by the witness that possesses indicia of reliability, because it would appear to have been made when the witness was unaware that he was being surveilled." Id.

Ameen also requests any other evidence of Ameen's presence in Turkey during the relevant time-period. He references "global surveillance run by the [National Security Agency] and others with cooperation of international telecommunications companies" and contends that this surveillance could prove Ameen's presence in Turkey at the time of the murder. Id. at 35-36. To that end, Ameen states that he would gladly provide the government with his Turkish cell phone number to facilitate a search for records that would place him in Turkey on the date of the murder. Id. at 36.

5. Documents that Rebut Page Seventy-One of the Extradition Request

The extradition request, at page seventy-one, asserts that Ameen is a founding member of al-Tawhid Wa al-Jihad – an organization whose founding is ultimately attributed to Abu Musab al-Zarqawi. ECF No. 22-1 at 71. The request further states that Ameen was a "close associate" of Zarqawi. Id. Ameen notes that defense investigations have failed to uncover any evidence linking him to Zarqawi. ECF No. 116 at 37-38. Ameen states that, if he was in fact a close associate of Zarqawi (who was one of the most wanted men in the world prior to his death in 2006), it is "inconceivable" that the government would have no evidence of that association. Id. at 38. He argues that, if the government does not have such evidence, it should be compelled to state as much. Id.

Ameen also notes that the same page of the extradition request alleges that he worked under the terrorist leader Ghassan Muhammad Ameen al-Rawi in 2007. ECF No. 22-1 at 71. He argues that this information is obviously suspect insofar as al-Rawi was arrested in 2005 and has been in custody since that date. ECF No. 116 at 38. And al-Rawi has, since entering custody, provided information leading to the capture and killing of other insurgents. Id. Ameen argues that, if al-Rawi has failed to provide any information confirming their affiliation, that is exculpatory information and must be disclosed. Id.

Finally, Ameen points to the extradition request's claim11 that, in 2006, "he launched an armed attack against the army headquarters in Al-Karablah Area in Al-Qa'im, where he took soldiers as prisoners and executed them at the same time." ECF No. 22-1 at 71. The request also alleges that "in the same year [2006], he launched an armed attack against the army headquarters where several soldiers were killed." Id. He claims that, despite the sensational nature of these alleged terrorist operations, the defense has been unable to uncover any...

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1 cases
  • In re Extradition of Manrique
    • United States
    • U.S. District Court — Northern District of California
    • February 6, 2020
    ...and therefore binding on this Court, as other lower courts in the Ninth Circuit have concluded. See In the Matter of the Extradition of Ameen, 378 F. Supp. 3d 902, 910 (E.D. Cal. 2019) ("In Merino v. United States Marshal, the Ninth Circuit held that Brady is not applicable to international......

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