U.S. v. Al Jibori, 1319

• Decision Date: 01 July 1996
• Docket Number: D,No. 1319,1319
• Citation: 90 F.3d 22
• Parties: UNITED STATES of America, Appellee, v. Chafat AL JIBORI, a/k/a "Jari Into Kalervo Lundkvist," Defendant-Appellant. ocket 95-1543.
• Court: U.S. Court of Appeals — Second Circuit

Page 22

90 F.3d 22

UNITED STATES of America, Appellee, v. Chafat AL JIBORI, a/k/a "Jari Into Kalervo Lundkvist," Defendant-Appellant.

No. 1319, Docket 95-1543.

United States Court of Appeals Second Circuit.

Argued April 10, 1996.

Decided July 1, 1996.

Zachary W. Carter, United States Attorney, Eastern District of New York, Brooklyn, NY (Emily Berger, Y. Hui Chen, Assistant United States Attorneys, of counsel), for Appellee.

Henriette D. Hoffman, The Legal Aid Society, Federal Defender Division, Appeals Bureau, of counsel, for Defendant-Appellant.

Before LUMBARD and KEARSE, Circuit Judges, and MORAN, Senior District Judge. ^*

MORAN, Senior District Judge:

Chafat Al Jibori (Al Jibori) appeals from a judgment of the United States District Court for the Eastern District of New York entered on September 15, 1995. Al Jibori was convicted by a jury of using a false passport in violation of 18 U.S.C. § 1543. He contends that the district court erred in concluding that the government did not prosecute him in bad faith, a conclusion that led to the denial of his selective prosecution motion. He also challenges the sufficiency of the evidence against him.

BACKGROUND

A. FACTS

Al Jibori arrived at John F. Kennedy International Airport (Kennedy) on September 2, 1994, on a flight from Romania. Based on the record it is unclear exactly what happened when he entered Kennedy's primary immigration inspection area after deplaning. The testimony at trial indicated that he was directed to a secondary inspection area where he was interviewed by an immigration inspector, Mona Farag (Farag), a native Arabic speaker and the only government witness to testify. Farag stated that a second immigration inspector had possession of Al Jibori's passport when she arrived at the secondary area. The inspector promptly gave Al Jibori's documentation to Farag. She noted that it was a Swedish passport bearing Al Jibori's photograph and the name "Lundkvist." Farag concluded, based on numerous deficiencies in the passport's seal and photograph, that it had been "photo-substituted."

Farag interviewed Al Jibori under oath at the secondary area. Al Jibori admitted that the passport was fake and had been purchased for $5,000 from a Romanian vendor. He stated his real name and that he was a citizen of Iraq and a member of the Shiite Muslim religion. He said that he had come to the United States to see his brothers and to ask for political asylum. He contended that his life was in danger in Iraq due to his brothers' affiliation with a political opposition group. At the end of the interview, Farag informed Al Jibori that he had the choice of going before an immigration judge to pursue his asylum claim or to return immediately to Romania. Al Jibori chose the former option.

B. PROCEDURAL HISTORY

Almost two months after Al Jibori's arrival in New York, during which time he was held at an immigration facility in New Jersey, the Immigration and Naturalization Service (INS), through an agent assigned to the Joint Terrorism Task Force at the Federal Bureau of Investigation in New York City (Task Force), approached the United States Attorney for the Eastern District of New York for authorization to prosecute Al Jibori under 18 U.S.C. § 1543 for presenting a false passport at Kennedy. The United States Attorney does not contest that section 1543 is a relatively uncommon statute upon which to premise a prosecution. He contends, however, that he authorized the prosecution based on the Task Force's showing that it was developing a profile of potential security threats. Prior to Al Jibori's attempted entry, an individual from Jordan, who was eventually convicted with regard to the February 1993 bombing of the World Trade Center, had attempted to enter the United States at Kennedy Airport on a flight from Pakistan using a Swedish passport with his photograph pasted on top of the passport-holder's photograph. That individual had in his possession manuals related to manufacturing explosives.

After Al Jibori was indicted on December 29, 1994, he moved to dismiss the indictment for selective prosecution under Fed.R.Crim.P. 12(b)(1). The government responded by filing a letter and an affidavit stating that although there had been only four section 1543 prosecutions in the Eastern District over the last five years, there had been close to 140 prosecutions under sister statutes 18 U.S.C. §§ 1542, 1544, and 1546 during the same period, each of which, it asserted, could have been brought against defendants who had presented false or fraudulent passports at U.S. points of entry. The district court, noting that the defendant's prima facie showing in selective prosecution cases must include proof that he had been singled out for prosecution, ordered the government to narrow the scope of its data to those cases where, as here, the defendant was charged solely on the basis of presenting a fake passport.

Instead of complying with what turned out to be a burdensome administrative task, the government sought to defeat defendant's motion on the ground that he had failed to show that the government's decision to prosecute had been made in bad faith. Pursuant to this goal, the government submitted the affidavit of Assistant U.S. Attorney Jonathan Sack (Sack), who stated that the decision to prosecute was based on the similarity between Al Jibori's case and that of the terrorist convicted in the World Trade Center bombing, both being middle easterners traveling on altered Swedish passports:

THE COURT: You've got an affidavit, Mr. Buell, that suggests at least in part, apart from the similarities of the passport, that one factor here dealt with his national origin. In other words, there is a paragraph at which Mr. Sach [sic] says that these cases are prosecuted only in particular circumstances, suggesting that they're not routinely prosecuted, and that one predominant factor seems to deal with national origin....

How do you address the argument that he makes based on the contents of the affidavit, that there is an admission that these cases are generally not prosecuted,and one component here that stood out was that he was prosecuted, at least in part, because of where he came from.

MR. BUELL [Assistant U.S. Attorney]: There is no contention on the government's part that that wasn't a factor....

* * * * * *

THE COURT: Is the government then taking this case, where it doesn't take other cases, because of the possibility of this defendant's involvement in terrorist activities?

MR. BUELL: Yes. It's the combination of the place of origin and the mode of entry.

(Transcr. 5/25/95 hearing, pp. 13-15) [A147-49].

MR. BUELL: ... [I]t's important that national origin is not irrelevant in terms of permissible basis for prosecution. And this is in fact, ... an instance in which place of origin does have some relevance.

(Id. at 19) [A153].

THE COURT: You're relying on the fact that he comes from the middle east. You're saying that is a component to take into account. So does that suggest that the middle east is--

MR. BUELL: That component was taken into account.

THE COURT: But why is that important?

MR. BUELL: Your Honor, I think it's clear to all of us that there has been significant terrorist activity that has originated out of that region in recent years. And it isn't as if we're just picking the middle east because we don't like that area of the world politically. Clearly, the decision is made here because of past experience....

(Id. at 32) [A166]; see also Affidavit of Jonathan S. Sack, April 24, 1995, p. 3 (stating that one reason for the prosecution was that "Jibori was from the same region as [a terrorist] (the Middle East)...." [A104].

The district court essentially adopted Sack's affidavit as sufficient to extinguish defendant's claim of selective prosecution, stating that "defendant's resemblance to another defendant who was a known terrorist" was a sufficient "good faith" reason for prosecuting.

DISCUSSION

While the nation's prosecutors retain " 'broad discretion' " to enforce our criminal laws, Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985) (quoting United States v. Goodwin, 457 U.S. 368, 380 n. 11, 102 S.Ct. 2485, 2492 n. 11, 73 L.Ed.2d 74 (1982)), this discretion is bound by constitutional constraints such as the Due Process Clause of the Fifth Amendment, which prohibits a decision to prosecute from being based on "an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962).

The dispute here is not grounded in whether it is unconstitutionally arbitrary to use an accused's national origin as the sole basis for selecting him for prosecution--the government agrees that this would be an improper basis for government action--but focuses instead on the appropriate burdens of proof and production which the accused must meet to make a successful selective prosecution claim. The burden-shifting rules in selective prosecution motions were the subject of a recent Supreme Court case, United States v. Armstrong, --- U.S. ----, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). In Armstrong, the Supreme Court, in addition to reaffirming the judicial reluctance to look behind prosecutorial decisionmaking, clarified the threshold at which a defendant is entitled to discovery to help prove the claim. Id. at ----, 116 S.Ct. at 1488. Under the Armstrong standard a defendant must make at least "a credible showing of different treatment of similarly situated persons" to establish a colorable basis for a finding of discriminatory effect and consequently to become eligible for discovery. Id. at ----, 116 S.Ct. at 1489. This ruling seriously undermines our holding in United States v. Berrios, that "the decision to permit a hearing and, in anticipation thereof, to authorize a subpoena of evidence in the government's possession, lies largely in the...