U.S. v. Moussaoui

• Decision Date: 02 October 2003
• Docket Number: No. CRIM. 01-455-A.,CRIM. 01-455-A.
• Citation: 282 F.Supp.2d 480
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America, v. Zacarias MOUSSAOUI, a/k/a "Shaqil" a/k/a "Abu Khalid al Sahrawi," Defendant.

282 F.Supp.2d 480

UNITED STATES of America, v. Zacarias MOUSSAOUI, a/k/a "Shaqil" a/k/a "Abu Khalid al Sahrawi," Defendant.

No. CRIM. 01-455-A.

United States District Court, E.D. Virginia, Alexandria Division.

October 2, 2003.

Robert A. Spencer, United States Attorney's Office, Alexandria, VA, for U.S.

Edward B. MacMahon, Middleburg, VA, Alan H. Yamamoto, Alexandria, VA, Gerald Thomas Zerkin, Frank W. Dunham, Jr., Office of the Public Defender, Richmond, VA, for Defendant.

Zacarias Moussaoui, Alexandria, VA, Pro se.

MEMORANDUM OPINION

BRINKEMA District Judge.

I. Introduction

Pursuant to Section 6(e) of the Classified Information Procedures Act ("CIPA"), 18 U.S.C.App. 3, the United States has advised the Court that it cannot, consistent with national security considerations, comply with the Court's Orders of January 31 and August 29, 2003.¹ The Court must accept this representation as the product of the reasoned judgment of the Executive Branch. Therefore, the depositions ordered by the Court on January 31 and August 29, 2003 will not occur. 18 U.S.C.App. 3 § 6(e)(1); see also United States v. Fernandez, 913 F.2d 148, 154 (4th Cir.1990) (affirming the district court's rejection of proposed substitutions and dismissal of the indictment after the defendant was prohibited from disclosing classified information the court found to be relevant and admissible).

The Court has previously found that the defendant's fundamental right to a fair trial includes the right to compel the trial testimony of witnesses, presumably in Government custody, who may be able to provide favorable testimony on his behalf.² Moreover, we have also concluded that, consistent with well-established principles of due process, the United States may not maintain this capital prosecution while simultaneously refusing to produce witnesses who could, at minimum, help the defendant avoid a sentence of death.³ See U.S. Const. Amend. VI; Jencks v. United States, 353 U.S. 657, 671, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957) (finding it to be inconsistent with the Government's paramount obligation to ensure that "justice is done" to "undertake prosecution and then invoke its... privileges to deprive the accused of anything which might be material to his defense"); Roviaro v. United States, 353 U.S. 53, 64-65, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) (finding that the trial court committed prejudicial error when it permitted the Government to withhold from the defense the identity of a confidential informant, who played a prominent role in the charged criminal activity and could have offered trial testimony that would have been relevant and helpful to the defense). In light of these findings, and the Government's refusal to comply with the Court's Orders of January 31 and August 29, 2003, the Court must now determine what sanction is appropriate. See 18 U.S.C.App. § 6(e)(2); see also United States v. Hastings, 126 F.3d 310, 317 (4th Cir.1997) (finding that it is proper for a district court to sanction the Government for failing to comply with a discovery order).⁴

Both the defendant and standby defense counsel argue that total dismissal of this prosecution is the appropriate sanction.⁵ Believing it to be "the surest route for ensuring that the questions at issue here can promptly be presented to the Fourth Circuit," the United States does not contest that dismissal of the Indictment is the appropriate sanction under Section 6(e)(2) of CIPA.⁶ We do not agree.

II. Discussion

Although dismissal is the presumptive sanction contemplated by CIPA when a defendant is prevented from disclosing classified information found to be material and favorable,⁷ 18 U.S.C.App. 3 § 6(e)(2), in the interest of justice, a district court may exercise its discretion to fashion and impose less draconian sanctions. See 18 U.S.C.App. 36(e)(2); Fernandez, 913 F.2d at 163; see also Roviaro, 353 U.S. at 65, 77 S.Ct. 623 (noting that the Government's refusal to provide the defense with the name and address of an informant who could have offered trial testimony that would have been helpful to the defense should have been punished by dismissal of the relevant count in the indictment); Hastings, 126 F.3d at 317 (finding that dismissal of the indictment was too severe a sanction for the Government's failure to comply with the district court's discovery order regarding the defendant's selective prosecution claim); United States v. Muse, 83 F.3d 672, 675 (4th Cir.1996); cf. Jencks, 353 U.S. at 671-72, 77 S.Ct. 1007 (finding that a criminal case must be dismissed when the Government, on the ground of privilege, elects not to comply with an order to produce to the defense information the trial court has found to be relevant).

The unprecedented investment of both human and material resources in this case mandates the careful consideration of some sanction other than dismissal. The defendant has been in federal custody since August 16, 2001, and has been under indictment in this court for nearly two years. Finding that this case can be resolved in an open and public forum, the Court concludes that the interests of justice would not be well served by dismissal.

In the Second Superseding Indictment ("Indictment"), Moussaoui is charged with Conspiracy to Commit Acts of Terrorism Transcending National Boundaries in violation of 18 U.S.C. § 2332b(a)(2) and (c) (Count I), Conspiracy to Commit Aircraft Piracy in violation of 18 U.S.C. § 46502(a)(1)(A) and (a)(2)(B) (Count II), Conspiracy to Destroy Aircraft in violation of 18 U.S.C. §§ 32(a)(7) and 34 (Count III), Conspiracy to Use Weapons of Mass Destruction in violation of 18 U.S.C. § 2332a(a) (Count IV), Conspiracy to Murder United States Employees in violation of 18 U.S.C. §§ 1114 and 1117 (Count V), and Conspiracy to Destroy Property in violation of 18 U.S.C. § 844(f), (i) and (n) (Count VI). The first four counts expose the defendant to a possible sentence of death because the United States has alleged that the charged conspiracies resulted in thousands of deaths on September 11, 2001.⁸ (Indictment, Count I, The Charge at ¶ 16, Count II at ¶ 2, Count III at ¶ 2, Count IV at ¶ 2; Notice of Special Findings; Notice of Intent to Seek a Sentence of Death).

Approximately seventy-five percent of the Indictment concerns the activities of the nineteen alleged hijackers on and before September 11, 2001. Nevertheless, the United States maintains that the charged conspiracies are not conspiracies to carry out the September 11 attacks.⁹ Instead, the United States has, at times,¹⁰ broadly characterized the underlying unlawful agreement as "al Qaeda's conspiracy to attack the United States,"¹¹ al Qaeda's "war on the United States" in which its members would "use virtually any means available to murder Americans en masse,"¹² and "a coordinated plan of attack upon the United States that included flying planes into American buildings."¹³

Although the precise nature and scope of the charged conspiracies ultimately are questions for the jury to resolve,¹⁴ see United States v. Leavis, 853 F.2d 215, 218 (4th Cir.1988), the United States correctly contends that it need not prove the defendant's participation in the September 11 attacks to obtain a conviction in this case.¹⁵ Rather, to establish a defendant's guilt for a crime of conspiracy,¹⁶ the Government must prove beyond a reasonable doubt, (1) the existence of an agreement between two or more persons to engage in the charged unlawful conduct, and (2) that the defendant knowingly and voluntarily became a member of the conspiracy.¹⁷ See United States v. Strickland, 245 F.3d 368, 385 (4th Cir.2001). "Once it has been shown that a conspiracy exists, the evidence need only establish a slight connection between the defendant and the conspiracy to support conviction." United States v. Burgos, 94 F.3d 849, 861 (4th Cir.1996) (quoting United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir.1992)). "One may be a member of a conspiracy without knowing its full scope, or all its members, and without taking part in the full range of its activities." United States v. Banks, 10 F.3d 1044, 1054 (4th Cir.1993). Even if a defendant played only a minor role in a charged conspiracy, he may be convicted so long as he willfully joined "with an understanding of the unlawful nature" or "essential objectives" thereof. United States v. Stewart, 256 F.3d 231, 250 (4th Cir.2001); Burgos, 94 F.3d at 858 (quoting United States v. Roberts, 881 F.2d 95, 101 (4th Cir.1989)).

The Government's burden, however, as to the defendant's death eligibility is more of a challenge. The prosecution must first prove beyond a reasonable doubt, and the jury must find, that the defendant, himself, "intentionally participated in an act," 18 U.S.C. § 3591(a)(2)(C), or "intentionally and specifically engaged in an act of violence," 18 U.S.C. § 3591(a)(2)(D), that directly resulted in death. In opposing the Defendant's Motion to Strike the Notice of Intent to Seek a Sentence of Death, the Government recognizes that the defendant's conduct must have been a substantial factor in the deaths of the victims. The Government, therefore, has supported exposing the defendant to the death penalty by arguing that the conspiracies, themselves, are the "acts" in which the defendant "participated" or "engaged" rendering him death eligible.¹⁸

To withstand constitutional scrutiny, any sentence of death in this case must be predicated on what the defendant, himself, actually did, not on what he may have wanted to do or on what his alleged co-conspirators were able to accomplish on their own. See Tison v. Arizona, 481 U.S. 137, 149, 156-57, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) (holding that major participation in a felony, combined with reckless indifference to human life, is sufficient to satisfy the culpability requirement for a sentence of death "when that conduct causes its natural... lethal result");¹⁹ Enmund v. Florida, 458 U.S. 782, 798, 801, 102 S.Ct. 3368, 73...