U.S. v. Koubriti

• Decision Date: 16 December 2003
• Docket Number: No. 01-80778.,01-80778.
• Citation: 305 F.Supp.2d 723
• Parties: UNITED STATES of America, Plaintiff, v. (D-1) Karim KOUBRITI, (D-2) Ahmed Hannan, and (D-4) Abdel Ilah Elmardoudi, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

305 F.Supp.2d 723

UNITED STATES of America, Plaintiff, v. (D-1) Karim KOUBRITI, (D-2) Ahmed Hannan, and (D-4) Abdel Ilah Elmardoudi, Defendants.

No. 01-80778.

United States District Court, E.D. Michigan, Southern Division.

December 16, 2003.

Asst. U.S. Attorney Eric Strauss, Detroit, MI, for the Government.

Leroy Soles, Rick Helfrick, James Gerometta, Federal Defenders Office, Detroit, MI, for Defendant Koubriti.

Jim Thomas, Detroit, MI, for Defendant Hannan.

Bill Swor, Detroit, MI, for Defendant El Mardoudi.

Steve Rabaut, St. Clair Shores, MI, for Youssef Hmimmsa.

OPINION AND ORDER REGARDING DEFENDANTS' MOTION TO REQUIRE ATTORNEY GENERAL TO SHOW CAUSE WHY HE SHOULD NOT BE HELD IN CONTEMPT

ROSEN, District Judge.

I. INTRODUCTION

This case began just six days after the September 11, 2001 terrorist attacks on New York and Washington, D.C., when three of the Defendants were found at an apartment where federal and state law enforcement officials had hoped to locate an individual on the FBI's "watch list" of suspected terrorists or associates of known terrorists. These arrests generated a substantial amount of media coverage, in light of the public emotions aroused in the immediate wake of the September 11 attacks and the link to a man suspected of associating with terrorists. This attention only increased as the Government augmented its initial document fraud charges with more serious terrorism-related charges, and as it began to appear that this might well be (and, in fact, was) the first case to proceed to trial on terrorism-related charges since the September 11 attacks.

Against this backdrop of momentous national tragedy, heightened public and media interest, and the challenge of ensuring a fair trial for individuals of Middle Eastern origin in a case involving allegations of terrorism-related activities, the parties and their counsel quickly and unanimously suggested that the Court enter an order regulating public statements by the parties or their attorneys concerning this case. Thus, in the early days of this case, the Court issued a stipulated Order Concerning Public Communications by Parties or Lawyers, which was signed by counsel for all parties. Generally speaking, this Order prohibited the public disclosure of information that had a reasonable likelihood of interfering with a fair trial or otherwise prejudicing the proceedings.

This Order generally achieved its purpose, despite a number of challenging developments during the course of these proceedings. Some lamentable incidents did arise, however, and two of the more serious of these directly involved this Nation's highest law enforcement official, United States Attorney General John Ashcroft. Specifically, the Attorney General referred to this case at two separate press briefings in Washington, D.C., once near the outset of this case and again in the middle of the trial. In the first instance, Attorney General Ashcroft erroneously stated that the three Defendants arrested on September 17, 2001 were "suspected of having knowledge of the September 11th attacks." On the second occasion, the Attorney General referred to a cooperating Government witness who had just completed his trial testimony, opining that this individual's testimony had "been of value, substantial value" to the Government.¹

Defendants raised contemporaneous and strenuous objections to these incidents, and some immediate prophylactic steps were taken. The Court elected at the time, however, to defer its ultimate disposition of these matters until after the trial, in order to avoid disruption of pretrial preparations and the conduct of the trial itself. Defendants now have renewed their objections, through a formal motion requesting that the Court order the Attorney General to show cause why he should not be held in contempt for violating the Court's Order regarding public communications. To date, the Court has issued only a more limited Order, directing the Attorney General to show cause in writing why he should not be compelled to appear for a hearing to address Defendants' motion.

As is evident from the foregoing, this matter poses a considerable challenge to the Court, demanding the reconciliation of a number of important, and sometimes competing, judicial and institutional concerns. First and foremost, it is the duty of this Court to ensure that Defendants have been afforded a fair trial consistent with the guarantees and dictates of our Constitution. Next, it cannot be gainsaid that this or any Court must stand behind its orders and apply them equally to all, without regard for station or title. As a coequal branch of government under this Nation's constitutional design, the judiciary is entitled to the respect of executive and legislative officials, no matter how senior or subordinate. At the same time, however, this Court recognizes that it may not trespass upon or unduly impede the functions entrusted by the Framers to the other branches of government.

As weighty and nuanced as these considerations might be, the present matter ultimately is amenable to resolution through the process routinely employed by the courts — namely, the application of the relevant legal standards to the facts of this particular case. The pertinent facts here are largely undisputed, and the governing law is reasonably well settled. For the reasons stated below, the Court finds that the Attorney General's public statements about this case violated the terms of the Court's Order regarding communications, if perhaps only inadvertently. The Court further determines, however, that there is insufficient evidence of willful misconduct or prejudice to the rights of Defendants to warrant the drastic and constitutionally problematic measures of instituting criminal contempt proceedings against the Attorney General or compelling him to appear at a hearing and give testimony concerning his actions.

Nevertheless, in light of the particular circumstances surrounding the Attorney General's conduct, which will be detailed below, the Court finds that it cannot simply ignore repeated violations of its Order. The Attorney General's Office exhibited a distressing lack of care in issuing potentially prejudicial statements about this case, one of which came after senior Justice Department officials were directly and expressly advised by the Court, on two separate occasions, that the Order had been entered and would be strictly applied to all, including the Attorney General and his staff. In addition, the Court is concerned that, despite the explicit warnings given in this case, the Attorney General apparently did not take sufficient steps to reform the procedures used in his Office, in order to ensure that staff members with significant prosecutorial experience carefully review any proposed references to pending cases to verify that they comport with all applicable ethical guidelines and court orders.

Despite his unquestioned duty to address the Nation on matters of public concern, and his more specific responsibility to keep the Nation informed of the Justice Department's efforts in the war on terror, the Attorney General has an equally vital and unyielding obligation, as the Nation's chief prosecutor, to ensure that defendants are accorded the fair trial guaranteed to them under our Constitution. In this case, this essential balance was jeopardized, even after the Court had issued specific warnings. Accordingly, the Court finds that a public and formal judicial admonishment of the Attorney General is the appropriate sanction to address this concern.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Circumstances Surrounding the Entry of the October 23, 2001 Order Concerning Public Communications by Parties or Lawyers

In order to place this matter in its proper context, it is necessary to recall the circumstances that led to the entry of the October 23, 2001 Order, and to recount the several occasions when the Court was called upon to address issues relating to this Order.² In the early days of this case, Defendants filed a motion in which they quoted the following statement by Justice Oliver Wendell Holmes:

The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.

(Defendants' 11/29/2001 Motion for Continuance in Light of Excessive and Inflammatory Pretrial Publicity, Br. in Support at 1 (quoting Patterson v. People of Colorado ex rel. Attorney General of Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907))). This same motion was accompanied by a list of hundreds of reports in the local, national, and worldwide media regarding Defendants and this case, with nearly all of these articles also mentioning the September 11, 2001 attacks on New York and Washington, D.C.

Such a juxtaposition was to be expected under the circumstances. Three of the four Defendants in this case³ were apprehended just six days after September 11, by Detroit Joint Terrorism Task Force agents who were looking for Nabil Al-Marabh, an individual listed on an FBI "watch list" of people suspected to be involved in some way in terrorist activities. The agents sought to interview Al-Marabh as someone who might have knowledge regarding the September 11 attacks, and the apartment where they sought him, at 2653 Norman Street in Detroit, Michigan, listed Al-Marabh's name on the mailbox.

Upon arriving at the Norman Street residence, the agents did not find Al-Marabh, but instead were greeted at the door by Defendant Karim Koubriti. Mr. Koubriti gave permission for the agents to follow him inside the apartment, where Defendants Koubriti, Ahmed Hannan, and Farouk Ali-Haimoud were found to be living as apparent transients, with no furniture to speak of and their clothing kept in duffel bags, suitcases, and garbage bags. A search of the premises revealed several suspicious items,...