U.S. v. Koubriti, 01-CR-80778.

• Decision Date: 02 September 2004
• Docket Number: No. 01-CR-80778.,01-CR-80778.
• Citation: 336 F.Supp.2d 676
• Parties: UNITED STATES of America, Plaintiff, v. Karim KOUBRITI, Ahmed Hannan, Abdel-Ilah Elmardoudi, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

336 F.Supp.2d 676

UNITED STATES of America, Plaintiff, v. Karim KOUBRITI, Ahmed Hannan, Abdel-Ilah Elmardoudi, Defendants.

No. 01-CR-80778.

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

September 2, 2004.

Craig S. Morford, Cleveland, OH, for Plaintiff.

Federal Defender, Detroit, MI, Stephen T. Rabaut, St. Clair Shores, MI, for Defendant.

MEMORANDUM OPINION AND ORDER REGARDING THE GOVERNMENT'S AND DEFENDANTS' POST-TRIAL MOTIONS

ROSEN, District Judge.

This Nation's war on terrorism has as its natural and inevitable adjunct the prosecution in the courts of those charged with terrorist activities. It is also inevitable that such cases will bring with them challenges to those who work in the judicial system which at times will place us in uncharted legal and constitutional waters. It should, then, not be surprising that this case — the first prosecuted and tried in the aftermath of September 11th — has in its post-trial phase presented the Court and counsel with a confounding maze of complicated and interrelated issues arising out of the original prosecution team's conduct of the case.

Yet, this case, like all others, is governed by the same core constitutional principles that have withstood countless tests throughout our Nation's history. One such principle, which has featured centrally in the post-trial phase of this case, is the due process mandate that the prosecutor must disclose to the defense all evidence which is "favorable to [the] accused" and "material either to guilt or to punishment." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963).¹ In their post-trial motions, as throughout the trial, the Defendants charged that the Government had not fully met their obligations under Brady and Giglio. They further, and more seriously, charged that the prosecution had engaged in a pattern of misconduct.

Such challenges are not altogether unusual, of course, particularly in the tense atmosphere of a high-profile case. The Defendants' allegations of prosecutorial misconduct, however, were given some credence by the discovery post-trial of at least one document that was intentionally not disclosed but unquestionably should have been — a point candidly acknowledged at a December 12, 2003 hearing by the head of the Criminal Division of the U.S. Attorney's Office in Detroit. In light of the testimony at this hearing, the Court ordered the Government to conduct a thorough review of the case, including all documents, both classified and non-classified, in the Government's possession having any connection whatsoever with the case. The primary purpose of this Order was to allow the Court to make a comprehensively supported determination as to whether, in fact, the Defendants' fair trial, confrontation and/or due process rights had been violated by either the intentional or inadvertent withholding of material exculpatory information.

The Court followed this Order with another directing those Government counsel responsible for conducting the investigation to periodically report upon their progress to the Court and to turn over to the Court all relevant documents. As this review developed, and its scope exceeded that which the Court and no doubt Government counsel anticipated, the United States Attorney General, to his credit, appointed a Special Attorney, Craig S. Morford, from outside the Detroit U.S. Attorney's office to lead the Government's review.

As matters progressed further, other developments arising out of the case intervened which made the review more complicated by presenting issues of overlapping concern and potentially conflicting objectives.² This had the unfortunate by-product of delaying the resolution of the principal issues raised in the Defendants' post-trial motions.

It is a fair statement that at the inception of this review no one, least of all the Court, could have anticipated the nature and scope of the issues — not to mention the sheer number of documents — that would ultimately be involved in this investigation. (Just one complicating factor, for example, was the necessity for the Court to review many classified documents and for the Court to seek security clearance for its staff and defense counsel, a time consuming process.) Certainly, no one could have imagined last winter that it would be almost autumn before the review was completed and a resolution at hand.

The Government's filing this week — confessing error, moving to dismiss the terrorism related charges in Count I, and acquiescing in a new trial as to the document fraud charges in Count II — brings to the point of resolution the vast majority of the outstanding issues raised in the Defendants' motions. It remains now only for the Court to put its imprimatur upon this resolution, at least as to those issues that are no longer in contest, before moving on to the next phase of this case.

Before doing so, the Court offers several observations about the case and its post-trial proceedings. First, from the inception of its review, it has been the Court's intention to conduct as thorough and comprehensive a review as possible and to examine all evidence, documents and concomitant issues presented to it before making a determination of the Defendants' motions. The Court believed then, and believes now, that jury verdicts reached after painstaking consideration of the evidence at trial and thorough deliberation should not be precipitously disregarded and overturned. Rather, jury verdicts should be disturbed only upon a court's firmest conviction and belief — formed after the most searching and comprehensive review of all of the evidence and issues — that a miscarriage of justice has occurred and a defendant's fundamental constitutional rights violated.

The Court is satisfied that this searching and comprehensive review has now been completed. Beyond the material provided directly to the Court by Government counsel in response to the review Order, the Court itself has conducted a personal review of all classified information in the possession of the Central Intelligence Agency concerning this case. In addition, the Court has, of course, thoroughly reviewed and considered the Government's filing.

This brings the Court to its second observation. The Court would be remiss if it did not commend both Government and defense counsel, and express its appreciation, for their work and conduct during the post-trial review process. Both the Government team pursuing the review, led by Mr. Morford, and all defense counsel have conducted themselves throughout this difficult process with the highest level of professionalism and commitment to the justice system, and all counsel have at all times thoroughly cooperated with the Court.

With respect to the Government team, in vigorously pursuing and producing to the Court all possible evidence, and helping to develop a complete record upon which a decision could be made, Government counsel has followed the evidence impartially and objectively and allowed the facts to lead where they may. The Court recognizes the initial impulse, under the circumstances presented here, to find fault with a system that allowed the mistakes now acknowledged by the Government — and, to be sure, the Defendants' due process rights have been compromised as a result of these errors. Nonetheless, any such criticism must be considerably tempered by the Government team's post-trial commitment to uncover all of the evidence and carefully assess whether, in fact, the Defendants were denied their right to a fair trial.³

In the Court's view, the position the Government has now taken — confessing prosecutorial error and acquiescing in most of the relief sought by the Defendants — is not only the legally and ethically correct decision, it is in the highest and best tradition of Department of Justice attorneys. Given the nature and background of this case, the Government's decision could not have been an easy one and, no...