Khaalis v. United States, 12748.

Citation408 A.2d 313
Decision Date22 October 1979
Docket NumberNo. 13092.,No. 12748.,No. 13090.,No. 12753.,No. 12751.,No. 13088.,No. 12750.,No. 13093.,No. 12754.,No. 13091.,No. 13089.,No. 12749.,No. 12752.,12748.,12749.,12750.,12751.,12752.,12753.,12754.,13088.,13089.,13090.,13091.,13092.,13093.
PartiesKhalifa Hamaas Abdul KHAALIS, Appellant, v. UNITED STATES, Appellee. Abdul RAHIM, a/k/a Philip Young, Appellant, v. UNITED STATES, Appellee. Abdul NUH, a/k/a Mark E. Gibson, Appellant, v. UNITED STATES, Appellee. Abdul SHAHEED, Appellant, v. UNITED STATES, Appellee. Abdul AL QAWEE, a/k/a Samuel Young, Appellant, v. UNITED STATES, Appellee. Abdul LATIF, a/k/a Carl E. Roper, Appellant, v. UNITED STATES, Appellee. Abdul HAMID, atk/a HiIvan Jude Finch, Appellant, v. UNITED STATES, Appellee. Abdul RAllAAQ, a/k/a Nelson McQueen, Jr., Appellant, v. UNITED STATES, Appellee. Abdul ADAM, a/k/a George W. Smith, Appellant, v. UNITED STATES, Appellee. Abdul MUZIKIR, a/k/a Marquette Anthony Hall, Appellant, v. UNITED STATES, Appellee. Abdul SALAAM, a/k/a Clarence White, Appellant, v. UNITED STATES, Appellee. Abdul RAHMAN, a/k/a Clyde Young, Appellant, v. UNITED STATES, Appellee.
CourtCourt of Appeals of Columbia District

Harry Toussaint Alexander, Washington, D. C., with whom W. Theophilus Jones, Washington, D. C., was on the brief, for appellants Khaalis and Adam.

Dennis O'Keefe, Charles A. Kubinski, Stephen J. O'Brien, John F. Mercer, Grandison E. Hill, Francis S. Smith, and Christopher G. Hoge, with whom John W. Sansing, Charles F. Stow, and John Treanor, Washington, D. C., all appointed by the court, were on brief, for appellants Rahim, Nuh, Shaheed, Al Qawee, Latif, Hamid, Razzaaq, Muzikir, Salaam and Rahman.

John R. Fisher, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Washington, D. C., at the time the brief was filed, John A. Terry, Martin J. Linsky, Mark H. Tuohey, III, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before KERN, MACK and FERREN, Associate Judges.

FERREN, Associate Judge:

On May 3, 1977, the grand jury indicted each of the twelve appellants on 31 counts, including conspiracy to commit kidnapping while armed, first-degree felony murder, second-degree murder while armed, and numerous counts of assault with a dangerous weapon, assault with intent to kill while armed, and kidnapping while armed.1 The charges arose out of events which came to be known as the "Hanafi" takeovers. On March 9, 1977, the twelve appellants, heavily armed, had invaded three sites in the District of Columbia (B'nai B'rith Headquarters, the Islamic Center, and the District Building), seized more than 130 hostages, murdered one man, wounded numerous others (some severely), held the hostages at gunpoint for nearly 39 hours, and repeatedly threatened them with execution by beheading.

Intensive voir dire of prospective jurors for a joint trial began on May 31, 1977. The jury was sworn on June 6 and immediately sequestered. Almost seven weeks later, on July 20, the jury began deliberations. It returned its verdicts on July 23, finding each appellant guilty of multiple offenses while also acquitting each on a number of the charges.2 Khaalis was convicted of substantive offenses occurring at all three sites. The others were convicted only of conspiracy to commit kidnapping while armed and of substantive offenses occurring at a particular takeover site.

Counsel filed motions for a new trial. They were denied. On September 6, 1977, after presentence reports had been filed, the court imposed consecutive and concurrent sentences totaling the following years of imprisonment: Khaalis, 41 to 123 years; Adam, 44 to 132 years; Latif, Shaheed and Hamid, 36 to 108 years; Razzaaq and Salaam, 40 to 120 years; Rahman and Rahim, 28 to 84 years; Al Qawee, 24 to 72 years; Muzikir, 77 years to life; and Nuh, 47 years to life. These appeals followed.

We begin with a summary of the government's evidence (Part I), followed by discussion of sixteen issues raised on appeal: alleged prejudicial publicity before and during the trial (Part II); denial of a pretrial motion to dismiss the indictment because of the prosecution's alleged interference with defense efforts to interview government witnesses (Part III); admission into evidence of conversations from allegedly unlawful emergency wiretaps of telephones at B'nai B'rith headquarters (Part IV); denial of the defense request for a "multiple conspiracy" instruction (Part V); allegedly improper curtailment of cross-examination (Part VI); alleged prosecutorial misconduct (Part VII); alleged judicial misconduct (Part VIII); the court's refusal to conduct a hearing on post-trial evidence that a juror may have been suffering from a mental infirmity during jury deliberations (Part IX); applicability of the District of Columbia kidnapping statute (Part X.A.); alleged systematic exclusion of Hanafi Muslims from the jury selection system (Part X.B.); allegedly improper use of "mug shot" photographs in the identification process (Part X.C.); refusal to sever appellant Adam's assault with a deadly weapon count (Part X.D.); revocation of appellant Khaalis' conditional release and his commitment to jail without bond, prior to indictment (Part X.E.); and the lengths of sentences, the refusal to permit appellants and their counsel to appear before the grand jury, and the alleged absence of appellants at a critical stage of the proceedings (Part X.F.).

We hold that none of these contentions has merit; we affirm all convictions.

I. THE FACTS

On March 9, 1977, at around 11:15 a. m., Khaalis, Adam, Shaheed, Latif, Hamid, Razzaaq, and Salaam arrived at B'nai B'rith headquarters (1640 Rhode Island Avenue, N.W.) in a U-Haul truck loaded with various weapons and ammunition. All heavily armed, they rushed into the lobby, held several persons at gunpoint, and announced that they had come to take over the building. They next commandeered the elevators and unloaded their weapons from the truck; then, with weapons drawn, they swept through the building, gathering more than 100 men and women as hostages. These hostages ultimately were taken to the eighth floor of the building, where, for the next 39 hours, they were repeatedly warned that if appellants' demands were not met, "blood would flow, heads would roll, people will die."

That same day, at approximately 12:30 p. m., appellants Rahman, Rahim, and Al Qawee, heavily armed with guns, knives, and machetes, attacked the Islamic Center at 2551 Massachusetts Avenue, N.W., a religious cultural organization. They took eleven hostages and, for the next 37 hours, threatened them with death if the demands made by Khaalis were not met.

Finally, on the same day at approximately 2:30 p. m., appellants Muzikir and Nuh, armed with a shotgun, machetes, and knives, entered the District Building at 14th and E Streets, N.W. They proceeded directly to the fifth floor, where the offices of the Mayor and the City Council are located. They captured a building guard at gunpoint and seized 14 other hostages. For the next 35 hours these hostages also were threatened with death if Khaalis' demands were not met.

Khaalis made three principal demands. He insisted that (1) the showing of a movie — "Mohammad, Messenger of God" — be halted in New York and other places, that (2) the convicted murderers of Khaalis' family be turned over to appellants for punishment,3 and that (8) Khaalis receive a refund of $750 which he believed he had been fined for an earlier contempt of court.

Although Khaalis was at B'nai B'rith, the government's evidence demonstrated that he directed the activities of the men at the other two sites. They, in turn, referred inquiries from the police and the press to Khaalis. On Friday, March 11, at approximately 2 a. m., 39 hours after the B'nai B'rith takeover — and as a result of extensive negotiations — appellants released all their hostages. Appellants were then arrested. A more detailed account of events at each site follows.

A. B'nai B'rith Headquarters
1. The Takeover

When Khaalis and three other appellants entered the first floor lobby of B'nai B'rith Headquarters,4 they confronted James Pulley (a security guard) with a large gun, forced him against the wall, and took him to the back of the building where he was ordered to lie with his nose on the floor. While a man with a pistol and a machete guarded him and several other hostages, Pulley heard one of the armed men say, "Get the guns out of the truck." He also heard a shot fired.

Khaalis and the three other appellants then took the elevator upstairs and swept through the building, taking more than 100 hostages. Initially, groups of hostages were herded, under a show of guns and a machete, into rooms on the second and fifth floors. Then, they were subjected to much verbal abuse, including obscenities. They were ordered to lie face-down on the floor or, if there was no floor space left, to lie on top of each other. During this initial phase of the takeover appellants physically assaulted many of the hostages.5

2. The Siege — 8th floor

Appellants, at gunpoint, ordered all the hostages who had been collected in the second and fifth floor rooms to the eighth floor, where they were held for the remainder of their 39-hour ordeal. Appellants moved the women out first, ten at a time, and then moved the men, four to five at once. The gunmen stood the men against the wall and tied their hands behind their backs. Khaalis called Sidney Clearfield to the front of the line. According to Clearfield, Khaalis "said he didn't like the way I was looking — and he punched me in the stomach." Another appellant asked if he could hit Clearfield, too, but Khaalis said, "No. I am going to give him my special karate punch," and Khaalis hit Clearfield again in the stomach.

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