U.S. v. Bin Laden

• Decision Date: 17 August 2000
• Docket Number: No. 98 CRIM. 1023(LBS).,98 CRIM. 1023(LBS).
• Citation: 109 F.Supp.2d 211
• Parties: UNITED STATES of America, v. Usama BIN LADEN, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

109 F.Supp.2d 211

UNITED STATES of America, v. Usama BIN LADEN, et al., Defendants.

No. 98 CRIM. 1023(LBS).

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

August 17, 2000.

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

James Roth, New York City, Lloyd Epstein, for Defendant Ali Mohamed.

Paul McAllister, New York City, Charles D. Adler, George Goltzer, for Defendant Salim.

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

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

Jeremy Schneider, David Stern, David Ruhnke, for Defendant K.K. Mohamed.

OPINION

SAND, District Judge.

Three Defendants—Wadih El Hage ("El Hage"), Mamdouh Mahmud Salim ("Salim"), and Ali Mohamed ("Mohamed")— have filed motions seeking a severance of their trial from that of certain co-defendants. For the reasons set forth below, and as stated in open court on August 2, 2000, those motions are denied.

BACKGROUND¹

The Indictment in this case alleges the existence of an entity known as "al Qaeda," or "the Base," which is said to be led by Defendant Usama Bin Laden and which is said to be committed to the use of violence as a means of opposing the United States. (See Indictment S(7) 98 Cr. 1023(LBS) at ¶¶ 1-9.) The bombings of the United States Embassies in Nairobi, Kenya and Dares Salaam, Tanzania on August 7, 1998 ("the embassy bombings") were, according to the Indictment, the work of al Qaeda.

Of the seventeen Defendants named in the Indictment, six are presently in the custody of the United States Bureau of Prisons ("BOP") awaiting trial.² Of those six, three — Mohamed Sadeek Odeh ("Odeh"), Mohamed Rashed Daoud Al-`Owhali ("Al-`Owhali"), and Khalfan Khamis Mohamed ("K.K.Mohamed") — are charged with substantive offenses arising out of the embassy bombings,³ and with conspiring to commit those offenses. The other three Defendants in custody — Salim, El Hage, and Mohamed — are charged with conspiring to commit the embassy bombings, but not with the substantive offenses.⁴ Of the three Defendants charged with substantive offenses, the Government has indicated, pursuant to the procedures set forth in the United States Attorneys' Manual §§ 9-10.020 to 9-10.080, that it will seek the death penalty with respect to two—Al-`Owhali and K.K. Mohamed. (See United States v. Bin Laden, Docs. 227 & 230, Notices of Intent to Seek the Death Penalty, 98 Cr. 1023(LBS) (S.D.N.Y. June 28, 2000).)

All seventeen Defendants are accused of being affiliated, in some way, with al Qaeda. The Government claims that it will prove at trial, beyond a reasonable doubt, that al Qaeda's activities — including the embassy bombings — were conducted through the efforts of distinct "cells" of operatives, each of which bore responsibility for particular facets of an operation. (See Letter from AUSA Karas to the Court of July 31, 2000, at 5.) For example, the Government theorizes that one cell would be responsible for approving an operation, a different cell would be responsible for intelligence (i.e., scouting an operation, conducting surveillance), a third cell would be responsible for logistics (i.e., establishing a base for the operation, transporting materials), and another cell would be responsible for executing the operation. (See id. & id. at 5 n. 4 (citations omitted).) The members of each cell, according to the Government, would not necessarily be aware of the others' specific activities; their efforts would be coordinated by individuals occupying a relatively higher position in the organization. According to the Government, Defendant Salim was a member of the cell that approved the embassy bombings, Defendant Mohamed was a member of the intelligence cell, Defendant El Hage was a member of the logistics cell, and the three Defendants charged with substantive offenses were members of the execution cells. (See id. at 5.)

Pursuant to the Court of Appeals' instruction in United States v. Casamento, 887 F.2d 1141, 1151-52 (2d Cir.1989), this Court asked the Government to estimate the amount of time it would take to present its case in chief. The Government responded that it estimates it will take six to eight months for the presentation of its case if all six Defendants are tried together; five to six months for a separate trial of the three moving Defendants; and four months for a separate trial of the three non-moving Defendants. (See Affirmation of AUSA Patrick J. Fitzgerald of July 14, 2000, at ¶¶ 44-48.) These estimates are exclusive of any time that would be spent selecting a jury, delivering opening and closing jury addresses, and presenting defense cases, all of which together can be expected to last at least two additional months per trial. (See id. at ¶ 45.)

While awaiting trial, each of the six Defendants is being held subject to certain Special Administrative Measures ("SAMs") authorized by BOP regulations for the confinement of particularly dangerous detainees. See 28 C.F.R. § 501.3(a) (1999). Those measures include being housed in special housing units, either alone or with a single roommate; limited access to recreational facilities; and restrictions on telephone calls, correspondence, and visits. By the time any trial of this case would commence, in January 2001,⁵ all six of the Defendants will have been incarcerated pursuant to the SAMs for over a year and four of the Defendants will have been so incarcerated for over two years.⁶ The Defendants have pressed numerous objections to both the length and conditions of their pretrial confinement. This Court has, on several occasions, recognized the significance of those objections and has carefully reviewed the circumstances of the Defendants' confinement before concluding that those circumstances are non-punitive and are justified by the Government's legitimate security concerns. See, e.g., United States v. Bin Laden, No. 98 Cr. 1023(LBS) (S.D.N.Y. Jan. 10, 2000) (oral order), aff'd sub nom. United States v. El-Hage, 213 F.3d 74 (2d Cir.2000) (per curiam).

DISCUSSION

When more than one defendant is accused of participating in the same act or transaction or series of acts or transactions,⁷ federal law expresses a strong preference for a single, joint trial of all defendants. See Zafiro v. United States, 506 U.S. 534, 537-38, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (citations omitted); United States v. Salameh, 152 F.3d 88, 115 (2d Cir.1998) (citations omitted), cert. denied, 526 U.S. 1028, 119 S.Ct. 1273, 143 L.Ed.2d 368 (1999). Joint trials promote judicial and prosecutorial efficiency, prevent inconsistent verdicts, and deny those defendants tried second the arbitrary advantage of gaining a preview of the government's case. See Zafiro, 506 U.S. at 537, 113 S.Ct. 933; United States v. Cardascia, 951 F.2d 474, 483 (2d Cir.1991) (citing Richardson v. Marsh, 481 U.S. 200, 209-10, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)).

In addition to those advantages to a joint trial, which exist in nearly every multi-defendant case, the length and condition of the Defendants' pretrial confinement and the logistical problems caused by the international nature of the Indictment's allegations provide additional reasons for this Court strongly to prefer a joint trial in this case. By the time any trial begins, the Defendants, without being convicted of any crime, will have been detained subject to severely restrictive conditions of confinement for extended periods of time. Any severance would necessarily entail a prolongation of that pretrial detention for some set of Defendants.⁸ Moreover, many of the witnesses who will testify at trial live in foreign countries and will have to travel great distances to appear in Court.⁹ To force any witness to repeat the ordeal of testifying in this trial under these circumstances is something this Court would prefer to avoid.

Nevertheless, we recognize that this Court should, in the exercise of its discretion,¹⁰ order that the trial of multiple defendants be severed if "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539, 113 S.Ct. 933; accord United States v. Jackson, 180 F.3d 55, 75 (2d Cir.), reh'g granted and rev'd on another ground, 196 F.3d 383 (2d Cir.1999), cert. denied, ___ U.S. ___, 120 S.Ct. 2731, 147 L.Ed.2d 993 (2000); see also Fed.R.Crim.P. 14. The moving Defendants, collectively, suggest five reasons they believe such a risk exists, which (with one exception)¹¹ can be grouped into two broad categories. The moving Defendants contend, first, that joinder of those Defendants charged only with conspiring to commit the embassy bombings (the "conspiracy-only Defendants") with other Defendants charged both with conspiring to commit the embassy bombings and with substantive offenses arising out of the bombings will cause undue prejudice to the conspiracy-only Defendants. Second, the moving Defendants argue that the joinder of those Defendants facing capital punishment (the "capital Defendants") with the Defendants who do not face capital punishment (the "non-capital Defendants") will cause undue prejudice to the non-capital Defendants.

A problem arises, however, because there is not a complete overlap between the set of Defendants facing capital punishment and the set charged with substantive offenses. Defendant Odeh is charged with substantive offenses, but is not facing capital punishment. If the Court were to credit the Defendants' arguments, therefore, three trials would, at a minimum, be necessary — one for the capital Defendants, one for the conspiracy Defendants, and one for Odeh. We note as well that Defendant Salim has insisted that he be tried separately from all of his co-Defendants. If the Court were to comply with his wishes, then, there would be four trials. I...