U.S. v. Awadallah
| Decision Date | 02 August 2006 |
| Docket Number | No. 01 CR. 1026(SAS).,01 CR. 1026(SAS). |
| Citation | 457 F.Supp.2d 246 |
| Parties | UNITED STATES OF AMERICA v. Osama AWADALLAH, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Jesse Berman, New York, New York, Elizabeth Fink, Sarah Kunstler, New York, New York, for Defendant.
Following a mistrial in May, 2006, defendant Osama Awadallah has moved for a change of venue pursuant to Federal Rule of Criminal Procedure 21(a). Awadallah urges this Court to focus specifically on the final days of jury deliberations culminating in the mistrial. During the "emotionally heated jury deliberations," some jurors "were tearfully discussing their September 11 recollections in the jury room."1 This turn of events has convinced Awadallah that "New Yorkers are too close to the events of September 11, 2001" for him to receive a fair trial in the Southern District of New York.2 Awadallah also requests additional peremptory challenges during jury selection based on the same arguments.3 The Government opposes both of these requests, asserting that the proper response to concerns of juror prejudice "is the use of the existing jury questionnaire, with follow-up voir dire questioning as needed."4
Awadallah is a lawful permanent resident of the United States and a citizen of Jordan, who entered this country in April 1999 at the age of nineteen. In the Fall of 2001, Awadallah was living in San Diego, and beginning his second year at Grossmont College, studying English as a Second Language.5
On September 20, 2001, Awadallah was approached at his home by a group of FBI agents investigating the terrorist attacks of September 11, and was subsequently questioned for approximately six hours at an FBI office.6 He was a subject of the FBI investigation because a scrap of paper with the words "Osama 589-5316" was found inside a car abandoned by Nawaf Al-Hazmi, one of the hijackers of American Airlines Flight 77.7 Agents had matched this number to a phone at a residence where Awadallah had briefly lived nearly two years earlier.8 On the morning of September 21, 2001, Awadallah was again brought to the FBI office, where he was given a polygraph test, questioned, and eventually arrested as a material witness.9 Over the following weeks, between September 21 and October 10, Awadallah was held in solitary confinement, and treated as a high security federal prisoner.10
On October 10, Awadallah was brought before a grand jury as a material witness. During the course of his grand jury testimony, the prosecutors repeatedly asked Awadallah about his knowledge of Al-Hazmi.11 Awadallah answered that he had met Al-Hazmi while working at a gas station in San Diego in the Spring of 2000, and had last seen him in December 2000, and described a number of innocuous encounters with Al-Hazmi. The prosecutors also asked Awadallah about Khalid Al-Midhar, another of the hijackers whom Awadallah had seen in Al-Hazmi's company. Awadallah described Al-Midhar's appearance, but said that he did not know the man's name. The Government then showed Awadallah a photocopy of his college exam booklet, in which Al-Midhar's name was written. Awadallah claimed that the handwriting was not his.
Awadallah appeared before the grand jury a second time on October 15.12 At that time, he testified that he was able to recall that the man with Al-Hazmi had been introduced to him as "Khalid." Awadallah claimed that he did not remember that he knew that name until after his October 10 testimony. Awadallah also testified that the handwriting in his exam booklet was his. He claimed that he had been confused on October 10, and had not recognized the handwriting as his.
Awadallah is charged with two counts of perjury arising from his grand jury testimony: (1) his denial that he knew Al-Midhar's name, and (2) his denial that the handwriting in his exam booklet was his.13 Jury selection for Awadallah's trial commenced on April 17, 2006 and the trial began on April 19, with closing arguments one week later. The jury's deliberations commenced at 3:45 p.m. on Wednesday, April 26. On Monday, May 1, the Court received a note from the jury that read 14 I encouraged the jury to continue deliberations, by reading a standard charge based on Allen v. United States.15
On Thursday, May 4, the jury wrote a note indicating that a single juror was refusing to deliberate.16 I asked the foreperson to identify that juror, and then called him into the courtroom for an individual voir dire. The following exchange occurred:
Further questioning of this juror confirmed that he was not refusing to deliberate, but held a different view than the majority. In short, a holdout situation had developed, and I was forced to declare a mistrial.18
Two days later, an article in the New York Times cited the holdout juror in reporting that "jurors had told stories of the World Trade Center attack during deliberations, sometimes tearfully."19 Awadallah moved for a change of venue, arguing that this development along with the "hostile deliberative environment" during trial were indicia of "actual prejudice in 2006," and that "a second trial in the greater metropolitan area, including New York and Connecticut, would be a violation of Mr. Awadallah's constitutional rights."20 The Government opined that a change in venue was unnecessary because Awadallah had received and would receive a fair trial in New York City.21 The Government also argued that "given the dubious sources of this information," if the Court intended to rely on the statements in the New York Times article, "it must conduct an evidentiary hearing and recall the jurors to testify regarding whether they were in fact discussing their personal experiences associated with September 11, 2001, and, if so, in what context."22
The jury foreperson agreed to reappear and answer the parties' questions—specifically, to confirm or deny the account in the New York Times. An interview was conducted on Thursday, July 20, in open court. The foreperson stated that during the course of deliberations, between "two or three, possibly four" people had told their personal stories of the September 11 attacks,23 and that there was crying involved.24 At least one of those people who recounted his or her story had been in Manhattan on the day of the attacks.25 The foreperson reported that this conversation occurred sometime during the second week of the deliberations, when tensions in the jury room were high as a result of the holdout situation.26
Under Rule 24(b) of the Federal Rules of Criminal Procedure, "[i]f the offense charged is punishable by imprisonment for more than one year, the government is entitled to 6 peremptory challenges and the defendant or defendants jointly to 10 peremptory challenges."27 The Rule states that "the court may allow additional peremptory challenges to multiple defendants, and may allow the defendants to exercise those challenges separately or jointly."28 However, the Rule does not provide parallel authorization to grant additional peremptory challenges in the case of an individual defendant. There is no guidance from the Second Circuit on this issue, but in United States v. Wilson, Judge Edward Weinfeld did a searching analysis and rejected a defendant's request for additional challenges, noting that "`there is no authority in [Rule 24(b)] for according extra challenges to a single defendant.'"29
The Sixth Amendment guarantees that in all criminal prosecutions, the defendant shall enjoy the right to trial "by an impartial jury."30 In certain extraordinary circumstances, this fundamental right may be compromised because of juror prejudice.31 Under Rule 21(a), a transfer of venue is warranted "if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there." The determination of whether prejudice makes a fair trial unlikely "is committed to the district court's discretion."32
Forty years ago, the Supreme Court held that "where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity."33 Where a Rule 21(a) motion is based on adverse pretrial publicity, the Second Circuit has established a three-step process for the trial court: first, "determine whether the coverage has a potential for unfair prejudice"; second, "canvass the jury to find out if they have learned of the potentially prejudicial publicity"; and, third, "examine individually exposed jurors—outside the presence of the other jurors—to ascertain how much they know of the distracting publicity and what effect, if any, it has had on that juror's ability to decide the case fairly...
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...jury pool are remedies used routinely in high-profile cases and are appropriate here." Id. Similarly, in United States v. Awadallah, 457 F. Supp. 2d 246 (S.D.N.Y. 2006), Awadallah, a citizen of Jordan and a lawful permanent resident of the United States, had been arrested as a material witn......
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...of New York" where "courts have relied on ‘thorough voir dire examinations ... to produce unbiased juries.’ " United States v. Awadallah , 457 F.Supp.2d 246, 254 (S.D.N.Y. 2006) (quoting United States v. Volpe , 42 F.Supp.2d 204, 218 (E.D.N.Y. 1999) ); See also, Volpe , 42 F. Supp.2d at 218......
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