U.S. v. Bin Laden

• Decision Date: 11 December 2000
• Docket Number: No. S(7) 98 CR. 1023(LBS).,S(7) 98 CR. 1023(LBS).
• Citation: 126 F.Supp.2d 256
• Parties: UNITED STATES of America, v. Usama BIN LADEN, a/k/a "Usamah Bin-Muhammad Bin-Ladin," a/k/a "Shaykh Usamah Bin-Ladin," a/k/a "Abu Abdullah," a/k/a "Mujahid Shaykh," a/k/a "Hajj," a/k/a "Abdul Hay," a/k/a "al Qaqa," a/k/a "the Director," a/k/a "the Supervisor," a/k/a "the Contractor," Muhammad Atef, a/k/a "Abu Hafs," a/k/a "Abu Hafs el Masry," a/k/a "Abu Hafs el Masry el Khabir," a/k/a "Taysir," a/k/a "Sheikh Taysir Abdullah," a/k/a "Abu Fatimah," a/k/a "Abu Khadija," Ayman Al Zawahiri, a/k/a "Abdel Muaz," a/k/a "Dr. Ayman al Zawahiri," a/k/a "the Doctor," a/k/a "Nur," a/k/a "Ustaz," a/k/a "Abu Mohammed," a/k/a "Abu Mohammed Nur al-Deen," Mamdouh Mahmud Salim, a/k/a "Abu Hajer al Iraqi," a/k/a "Abu Hajer," Khaled Al Fawwaz, a/k/a "Khaled Abdul Rahman Hamad al Fawwaz," a/k/a "Abu Omar," a/k/a "Hamad," Ali Mohamed, a/k/a "Ali Abdelseoud Mohamed," a/k/a "Abu Omar," a/k/a "Omar," a/k/a "Haydara," a/k/a "Taymour Ali Nasser," a/k/a "Ahmed Bahaa Eldin Mohamed Adam," Wadih El Hage, a/k/a "Abdus Sabbur," a/k/a "Abd al Sabbur," a/k/a "Wadia," a/k/a "Abu Abdullah al Lubnani," a/k/a "Norman," a/k/a "Wa'da Norman," a/k/a "the Manager," a/k/a "Tanzanite," Ibrahim Eidarous, a/k/a "Ibrahim Hussein Abdelhadi Eidarous," a/k/a "Daoud," a/k/a "Abu Abdullah," a/k/a "Ibrahim," Adel Abdel Bary, a/k/a "Adel Mohammed Abdul Almagid Abdel Bary," a/k/a "Abbas," a/k/a "Abu Dia," a/k/a "Adel," Fazul Abdullah Mohammed, a/k/a "Harun," a/k/a "Harun Fazhl," a/k/a "Fazhl Abdullah," a/k/a "Fazhl Khan," Mohamed Sadeek Odeh, a/k/a "Abu Moath," a/k/a "Noureldine," a/k/a "Marwan," a/k/a "Hydar," a/k/a "Abdullbast Awadah," a/k/a "Abdulbasit Awadh Mbarak Assayid," Mohamed Rashed Daoud Al-`Owhali, a/k/a "Khalid Salim Saleh Bin Rashed," a/k/a "Moath," a/k/a "Abdul Jabbar Ali Abdel-Latif," Mustafa Mohamed Fadhil, a/k/a "Mustafa Ali Elbishy," a/k/a "Hussein," a/k/a "Hussein Ali," a/k/a "Khalid," a/k/a "Abu Jihad," Khalfan Khamis Mohamed, a/k/a "Khalfan Khamis," Ahmed Khalfan Ghailani, a/k/a "Fupi," a/k/a "Abubakary Khalfan Ahmed Ghailani," a/k/a "Abubakar Khalfan Ahmed," Fahid Mohammed Ally Msalam, a/k/a "Fahad M. Ally," Sheikh Ahmed Salim Swedan, a/k/a "Sheikh Bahamadi," a/k/a "Ahmed Ally," Defendants.
• Court: U.S. District Court — Southern District of New York

Page 256

126 F.Supp.2d 256

UNITED STATES of America, v. Usama BIN LADEN, a/k/a "Usamah Bin-Muhammad Bin-Ladin," a/k/a "Shaykh Usamah Bin-Ladin," a/k/a "Abu Abdullah," a/k/a "Mujahid Shaykh," a/k/a "Hajj," a/k/a "Abdul Hay," a/k/a "al Qaqa," a/k/a "the Director," a/k/a "the Supervisor," a/k/a "the Contractor," Muhammad Atef, a/k/a "Abu Hafs," a/k/a "Abu Hafs el Masry," a/k/a "Abu Hafs el Masry el Khabir," a/k/a "Taysir," a/k/a "Sheikh Taysir Abdullah," a/k/a "Abu Fatimah," a/k/a "Abu Khadija," Ayman Al Zawahiri, a/k/a "Abdel Muaz," a/k/a "Dr. Ayman al Zawahiri," a/k/a "the Doctor," a/k/a "Nur," a/k/a "Ustaz," a/k/a "Abu Mohammed," a/k/a "Abu Mohammed Nur al-Deen," Mamdouh Mahmud Salim, a/k/a "Abu Hajer al Iraqi," a/k/a "Abu Hajer," Khaled Al Fawwaz, a/k/a "Khaled Abdul Rahman Hamad al Fawwaz," a/k/a "Abu Omar," a/k/a "Hamad," Ali Mohamed, a/k/a "Ali Abdelseoud Mohamed," a/k/a "Abu Omar," a/k/a "Omar," a/k/a "Haydara," a/k/a "Taymour Ali Nasser," a/k/a "Ahmed Bahaa Eldin Mohamed Adam," Wadih El Hage, a/k/a "Abdus Sabbur," a/k/a "Abd al Sabbur," a/k/a "Wadia," a/k/a "Abu Abdullah al Lubnani," a/k/a "Norman," a/k/a "Wa'da Norman," a/k/a "the Manager," a/k/a "Tanzanite," Ibrahim Eidarous, a/k/a "Ibrahim Hussein Abdelhadi Eidarous," a/k/a "Daoud," a/k/a "Abu Abdullah," a/k/a "Ibrahim," Adel Abdel Bary, a/k/a "Adel Mohammed Abdul Almagid Abdel Bary," a/k/a "Abbas," a/k/a "Abu Dia," a/k/a "Adel," Fazul Abdullah Mohammed, a/k/a "Harun," a/k/a "Harun Fazhl," a/k/a "Fazhl Abdullah," a/k/a "Fazhl Khan," Mohamed Sadeek Odeh, a/k/a "Abu Moath," a/k/a "Noureldine," a/k/a "Marwan," a/k/a "Hydar," a/k/a "Abdullbast Awadah," a/k/a "Abdulbasit Awadh Mbarak Assayid," Mohamed Rashed Daoud Al-`Owhali, a/k/a "Khalid Salim Saleh Bin Rashed," a/k/a "Moath," a/k/a "Abdul Jabbar Ali Abdel-Latif," Mustafa Mohamed Fadhil, a/k/a "Mustafa Ali Elbishy," a/k/a "Hussein," a/k/a "Hussein Ali," a/k/a "Khalid," a/k/a "Abu Jihad," Khalfan Khamis Mohamed, a/k/a "Khalfan Khamis," Ahmed Khalfan Ghailani, a/k/a "Fupi," a/k/a "Abubakary Khalfan Ahmed Ghailani," a/k/a "Abubakar Khalfan Ahmed," Fahid Mohammed Ally Msalam, a/k/a "Fahad M. Ally," Sheikh Ahmed Salim Swedan, a/k/a "Sheikh Bahamadi," a/k/a "Ahmed Ally," Defendants.

No. S(7) 98 CR. 1023(LBS).

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

December 11, 2000.

Mary Jo White, United States Attorney for the Southern District of New York, Paul W. Butler, Patrick J. Fitzgerald, Kenneth M. Karas, Michael J. Garcia, Paul W. Butler, Andrew C. McCarthy, Assistant United States Attorneys, New York City, for U.S.

Frederick H. Cohn, Laura Gasiorowski, David Preston Baugh, NY, for Defendant Al-`Owhali.

David A. Ruhnke, Jeremy Schneider, David Stern, NY, for Defendant Khalfan Khamis Mohamed.

Sam A. Schmidt, Joshua L. Dratel, Kristian K. Larsen, New York City, for Defendant El Hage.

Anthony L. Ricco, Edward D. Wilford, Carl J. Herman, Sandra A. Babcock, NY, for Defendant Odeh.

OPINION

SAND, District Judge.

If ultimately convicted for their alleged roles in the August 1998 bombings of two U.S. embassies in East Africa, Defendants Khalfan Khamis Mohamed ("K.K.Mohamed") and Mohamed Rashed Daoud Al-`Owhali ("Al-`Owhali") face possible death sentences. These two defendants have moved jointly to dismiss the Government's death penalty notices against them on grounds that the federal death penalty is sought "on the impermissible basis of race, and the arbitrary and capricious basis of geography." (Br. in Supp. of K.K. Mohamed's Death Penalty Mots. at 29.) In lieu of dismissal, Defendants seek expansive discovery of the Government's "capital-charging practices in [their own] and other capital cases" dating from January 1995¹ to the present. (Reply Br. in Supp. of K.K. Mohamed's Death Penalty Mots. at 2.) The sole evidence proffered by Defendants in support of their motion is the 1988-2000 Survey of the Federal Death Penalty System, a statistical study internally conducted and recently released by the U.S. Department of Justice ("the DOJ Survey"). Because we conclude that the DOJ Survey — in and of itself — does not justify, in the context of this specific capital prosecution, either dismissal of the death penalty notices or court-mandated discovery, Defendants' joint motion is denied.²

I. THE DOJ SURVEY

Released publicly on September 12, 2000, the DOJ Survey presents statistical data on the racial and geographic distribution of defendants at various stages of the federal capital-approval process. The coverage dates of the DOJ Survey are from November 18, 1988 (when the Drug Kingpin Act effectively reinstated the federal death penalty) to July 20, 2000. Rather than paraphrase the entirety of this 417-page study, we summarize infra those findings most relevant to Defendants' motion. In particular, because Defendants limit their request for discovery to federal capital cases between January 1995 and the present, we focus our synopsis on the post-1994 elements of the DOJ Survey.

Since January 1995, there have existed four major steps in the federal capital-approval process. First, a U.S. Attorney must initially decide whether to charge a defendant within his jurisdiction with a capital-eligible offense. Second, all 94 U.S. Attorneys must submit for DOJ review any case involving a capital-eligible defendant, and include with such submission their recommendation on whether to seek the death penalty against that defendant. Third, every submission is then considered by the Attorney General's Review Committee on Capital Cases ("Review Committee) which makes its own independent recommendation on whether to seek the death penalty. Fourth, the Attorney General evaluates all the capital-eligible cases submitted by the U.S. Attorneys, along with the two accompanying recommendations, and issues final direction on whether to seek the death penalty against each defendant.³

Each of these four steps necessarily requires the relevant decision-maker to divide defendants into two groups: those who should face the federal death penalty and those who should not. The DOJ Survey quantitatively analyzes that discretionary choice historically and through the lens of defendants' race and geographic location.

A. RACE STATISTICS

To some degree, the racial statistics presented in the DOJ Survey are indeed troubling. At each constituent level of decision-making in the federal capital-approval process — U.S. Attorney, Review Committee, Attorney General — more blacks (always) and Hispanics (sometimes) are selected to face the death penalty than whites. For example:

• From January 1995 to July 2000, of those defendants charged with a capital-eligible offense by the U.S. Attorney for the Southern District of New York, 8 percent were white; 34 percent were black; 56 percent were Hispanic; and 2 percent were "other race."⁴ (DOJ Survey at T-16.)

• From January 1995 to July 2000, of those defendants charged with a capital-eligible offense by the 94 U.S. Attorneys (as a whole), 20 percent were white; 48 percent were black; 29 percent were Hispanic; and 4 percent were "other race." (Id. at 9.)

• From January 1995 to July 2000, of those recommendations to seek the death penalty made by the U.S. Attorney for the Southern District of New York, 17 percent involved white defendants; 83 percent involved black defendants; 0 percent involved Hispanic defendants; and 0 percent involved "other race" defendants. (Id. at T-16.)

• From January 1995 to July 2000, of those recommendations to seek the death penalty made by the 94 U.S. Attorneys (as a whole), 26 percent involved white defendants; 44 percent involved black defendants; 21 percent involved Hispanic defendants; and 8 percent involved "other race" defendants. (Id. at 14.)

• From January 1995 to July 2000, of those recommendations to seek the death penalty made by the Review Committee, 26 percent involved white defendants; 44 percent involved black defendants; 23 percent involved Hispanic defendants; and 7 percent involved "other race" defendants. (Id. at 22.)

• From January 1995 to July 2000, of those authorizations to seek the death penalty made by the Attorney General, 28 percent involved white defendants; 45 percent involved black defendants; 20 percent involved Hispanic defendants; and 8 percent involved "other race" defendants. (Id. at 27.)

Yet the above figures fail to account for the fact that, at each level of decision-making, the pool of federal defendants eligible for capital approval may be filled with differing numbers of a given racial group. Perhaps the reason why, between January 1995 and July 2000, the Attorney General authorized seeking the death penalty against more blacks than whites can be explained by the fact that more blacks were capital-eligible to begin with.⁵ Not surprisingly, the DOJ Survey additionally compares the relative rates of capital approval within each racial group and at each decision-making step. The resulting statistics are far less startling:

• From January 1995 to July 2000, the U.S. Attorney for the Southern District of New York recommended seeking the death penalty against 25 percent of the white defendants charged with capital-eligible offenses; against 29 percent of the black defendants charged with capital-eligible offenses; against 0 percent of the Hispanic defendants charged with capital-eligible offenses; and against 0 percent of the "other race" defendants charged with capital-eligible offenses. (Id. at T-16.)

• From January 1995 to July 2000, the 94 U.S. Attorneys (as a whole) recommended seeking the death penalty against 36 percent of the white defendants charged with capital-eligible offenses; against 25 percent of the black defendants charged with capital-eligible offenses; against 20 percent of the Hispanic defendants charged with capital-eligible offenses; and against 52 percent of the "other race" defendants charged with capital-eligible offenses. (Id. at 10.)

• From January 1995 to July 2000, the Review Committee recommended...