IN RE TERR. BOMBINGS OF US EMB. IN EAST AFRICA, Docket No. 01-1535-cr(L)

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtFEINBERG, NEWMAN, and CABRANES, Circuit
Citation549 F.3d 146
Decision Date24 November 2008
Docket NumberDocket No. 01-1535-cr(L),01-1571-cr(con),05-6704-cr(con).,05-6149-cr(con),01-1550-cr(con),01-1553-cr(con)
PartiesIn re TERRORIST BOMBINGS OF U.S. EMBASSIES IN EAST AFRICA, United States of America, Appellee, v. Mohamed Sadeek Odeh, also known as Abu Moath, also known as Noureldine, also known as Marwan, also known as Hydar, Mohamed Rashed Daoud Al-'Owhali, also known as Khalid Salim Saleh Bin Rashed, also known as Moath, also known as Abdul Jabbar-Ali Abel-Latif, Wadih El Hage, also known as Abdus Sabbur, Defendants-Appellants, Khalfan Khamis Mohamed, also known as Khalfan Khamis, Defendant.

549 F.3d 146

In re TERRORIST BOMBINGS OF U.S. EMBASSIES IN EAST AFRICA, United States of America, Appellee,
v.
Mohamed Sadeek Odeh, also known as Abu Moath, also known as Noureldine, also known as Marwan, also known as Hydar, Mohamed Rashed Daoud Al-'Owhali, also known as Khalid Salim Saleh Bin Rashed, also known as Moath, also known as Abdul Jabbar-Ali Abel-Latif, Wadih El Hage, also known as Abdus Sabbur, Defendants-Appellants,
Khalfan Khamis Mohamed, also known as Khalfan Khamis, Defendant.

Docket Nos. 01-1535-cr(L), 01-1550-cr(con), 01-1553-cr(con), 01-1571-cr(con), 05-6149-cr(con), 05-6704-cr(con).

United States Court of Appeals, Second Circuit.

Argued: December 10, 2007.

Decided: November 24, 2008.


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David Raskin and Leslie C. Brown, Assistant United States Attorneys (Michael J. Garcia, United States Attorney, on the brief, Iris Lan, David O'Neil, Katherine Polk Failla, Celeste L. Koeleveld, Assistant United States Attorneys, of counsel), United States Attorney's Office for the Southern District of New York, New York, NY, for Appellee United States of America.

James E. Neuman, New York, NY, for Defendant-Appellant Mohamed Sadeek Odeh.

Frederick H. Cohn (Laura Gasiorowski, of counsel), New York, NY, for Defendant-Appellant Mohamed Rashed Daoud Al-'Owhali.

Joshua L. Dratel and Sam A. Schmidt (Erik B. Levin, Renita K. Thukral, Meredith S. Heller, of counsel), New York, NY, for Defendant-Appellant Wadih El Hage.

Before: FEINBERG, NEWMAN, and CABRANES, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

TABLE OF CONTENTS

INTRODUCTION ........................................................................... 154
                 I. BACKGROUND ........................................................................ 156
                 II. DISCUSSION ........................................................................ 161
                 A. Al-'Owhali's Challenge to the Sufficiency of the Indictment .................... 161
                 B. El-Hage's and Odeh's Challenges to the Sufficiency of the Evidence ............. 165
                 C. El-Hage's Challenge to the District Court's Application of the Classified
                 Information Procedures Act .................................................... 168
                 D. El-Hage's Motion To Sever His Trial from That of His Co-Defendants ............. 183
                 E. The Admission of Certain Statements of El-Hage's Co-Defendants, Co-Conspirators
                 and Other Third Parties ....................................................... 188
                 F. El-Hage's Motion for a New Trial Based on the Post-Conviction
                 Disclosure of Recorded Statements of a Government Witness ..................... 193
                 G. El-Hage's Claim under the Cumulative Error Doctrine ............................ 199
                 H. El-Hage's Challenge to the Sentence Imposed by the District Court .............. 204
                III. CONCLUSION ........................................................................ 209
                

INTRODUCTION

On May 29, 2001, a jury of the United States District Court for the Southern District of New York returned verdicts of guilt against defendants-appellants Mohamed Sadeek Odeh, Mohamed Rashed Daoud Al-'Owhali, and Wadih El-Hage as to numerous charges arising from their involvement in the August 7, 1998 bombings of the American Embassies in Nairobi, Kenya and Dar es Salaam, Tanzania (the "August 7 bombings").1 The jury considered,

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but declined to impose, the death penalty on defendant-appellant Al-'Owhali. Between October 22 and October 24, 2001, the District Court2 (Leonard B. Sand, Judge) entered judgments of conviction against all three defendants and sentenced each of them to life imprisonment. Defendants are currently incarcerated and serving their sentences. All three now appeal their convictions, and El-Hage also appeals (1) the sentence imposed upon him by Judge Sand, (2) an order entered on November 2, 2005 by Judge Kevin Thomas Duffy, denying his motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, and (3) an order entered on December 5, 2005 by Judge Duffy, denying El-Hage's motion for reconsideration of the November 2 order

This criminal case presents issues of great importance, many of which are complex and novel; consequently, this case has been in the federal courts for a decade. This case commenced in late 1998, when defendants were indicted for their participation in the August 7, 1998 bombings of American Embassies in Kenya and Tanzania — acts of terrorism that resulted in the deaths of over 200 people. Jury selection began in early 2001, and trial commenced in February of that year. The trial lasted nearly four months and concluded on May 29, 2001 when the jury reached unanimous verdicts of defendants' guilt. In October 2001, the District Court imposed a sentence of life imprisonment on all defendants, judgment was entered, and defendants then filed timely appeals.3 For the reasons described in greater detail below, as well as those set forth in In re Terrorist Bombings of U.S. Embassies in East Africa (Fourth Amendment Challenges), 548 F.3d 276 (2d Cir.2008), and In re Terrorist Bombings of U.S. Embassies in East Africa (Fifth Amendment Challenges), 548 F.3d 237 (2d Cir.2008), both filed today, we conclude that none of the issues raised on appeal has merit, with the exception of El-Hage's challenge to his sentence on the basis of the District Court's mandatory application of the United States Sentencing Guidelines based on then-binding Circuit precedent. We therefore affirm the judgments of conviction entered by the District Court against Al-'Owhali, El-Hage, and Odeh, and we remand the case to the District Court solely for the purpose of resentencing El-Hage.

In reaching this conclusion, we hold that (1) the indictment under which Al-'Owhali

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proceeded to trial sufficiently alleged the "gateway considerations" rendering Al-'Owhali death-eligible pursuant to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (2) the evidence presented at trial by the government was sufficient to support (a) El-Hage's conspiracy convictions and (b) Odeh's convictions for the conspiracy and substantive offenses with which he was charged; (3) pursuant to the Classified Information Procedures Act, 18 U.S.C. app. 3, the District Court was authorized to restrict access to classified information only to those with a security clearance, and its decision to do so here did not violate El-Hage's Sixth Amendment right to counsel, his Fifth and Sixth Amendment rights to present a defense, or his Fifth and Sixth Amendment rights to be present during a crucial stage in his trial; (4) the District Court did not err in denying El-Hage's motion to sever his trial from that of his co-defendants; (5) the statements of defendants' co-conspirators were properly admitted at trial; (6) defendants were not prejudiced by the government's post-trial disclosure of transcripts of video-conferences with a key witness for the government; (7) because we perceive no error at trial, there is no merit in El-Hage's suggestion that "cumulative error" deprived him of a fair trial; (8) the application of certain enhancements to El-Hage's sentencing guidelines calculation was not error; and (9) insofar as El-Hage's sentence resulted from the mandatory application of the United States Sentencing Guidelines, we remand his case for resentencing pursuant to United States v. Fagans, 406 F.3d 138 (2d Cir.2005)

I. BACKGROUND

We provide an outline of the factual and procedural history of this case below. Insofar as our evaluation of the claims raised by defendants requires additional detail from the record, we have provided that information in the relevant section of this opinion and in In re Terrorist Bombings of U.S. Embassies in East Africa (Fourth Amendment Challenges), 548 F.3d 276 (2d Cir.2008), and In re Terrorist Bombings of U.S. Embassies in East Africa (Fifth Amendment Challenges), 548 F.3d 237 (2d Cir.2008).

A. Factual Overview4

In 1996, the United States Attorney for the Southern District of New York convened a grand jury to investigate the involvement of Osama Bin Laden and the al Qaeda organization in international terrorism directed at U.S. nationals, other "internationally protected persons,"5 and U.S. interests. See United States v. Bin Laden, 126 F.Supp.2d 264, 268-69 (S.D.N.Y.2000). Bin Laden came to the attention of the U.S. government as early as 1992 when the U.S. Department of

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State determined that he had provided financing to Yemeni terrorists who were attempting to murder U.S. troops in Yemen. See The National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report 108-09 (2004). In 1993, the Central Intelligence Agency ("CIA") determined that Bin Laden had "paid for the training of some Egyptian terrorists in Sudan," id. at 108, and the State Department added Bin Laden to its list of known and suspected terrorists that same year, id. at 109, 83. By 1996, the CIA had linked Bin Laden to the al Qaeda organization. Id. at 109. U.S. intelligence experienced a "breakthrough" in the mid-1990s when a former aide to Bin Laden explained the "creation, character, direction, and intentions" of al Qaeda. Id. Around that time, U.S. intelligence officials also became aware that al Qaeda had a presence in Nairobi, Kenya; individuals associated with al Qaeda were using particular phone numbers to communicate with Bin Laden and with each other; and defendant El-Hage was one of those individuals. Bin Laden, 126 F.Supp.2d at 269.

El-Hage, a naturalized U.S. citizen, was a close associate of Bin Laden and served as the head of the Nairobi...

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