United States v. Alhassane Ould Mohamed, 13-CR-527(WFK)

• Decision Date: 01 December 2015
• Docket Number: 13-CR-527(WFK)
• Citation: 148 F.Supp.3d 232
• Parties: United States of America, v. Alhassane Ould Mohamed, also known as “Cheibani”, Defendant.
• Court: U.S. District Court — Eastern District of New York

148 F.Supp.3d 232

United States of America,

v.Alhassane Ould Mohamed, also known as “Cheibani”, Defendant.

13-CR-527(WFK)

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

Signed December 01, 2015

Zainab Ahmad, United States Attorneys Office, Brooklyn, NY, for United States of America.

DECISION AND ORDER

WILLIAM F. KUNTZ, II

, United States District Judge

On September 13, 2013, Alhassane Ould Mohamed (“Defendant”) was indicted for one count of Murder of an Internationally Protected Person and one count of Attempted Murder of an Internationally Protected Person. Dkt. 1 (“Indictment”). On June 19, 2015, Defendant filed an omnibus motion to (1) dismiss the charge of Attempted Murder of an Internationally Protected Person; (2) suppress statements made by Defendant; (3) exclude from trial the records of Defendant's alleged statements unless the creators of those records testify subject to cross-examination; (4) suppress all eye-witness identifications; (5) preclude evidence of prior alleged acts from trial; (6) order the Government to make early disclosures of all information material to the defense under Federal Rule of Criminal Procedure 16

; (7) order the Government to immediately disclose Brady /Giglio materials; (8) order the Government to immediately disclose its witness list; (9) urge the Government to disclose Jencks Act material early; and (10) order the return of Defendant's property or, in the alternative, hold a hearing. Dkt. 55-1 (“Def. Mot.”) For the reasons stated below, Defendant's motion is GRANTED IN PART and DENIED IN PART.

BACKGROUND

On September 13, 2013, Defendant was charged by indictment (“Indictment”) with one count of Murder of an Internationally Protected Person, in violation of 18 U.S.C. §§ 1116(a)

, 1116(c), and 1111(b) (“Count I”), and one count of Attempted Murder of an Internationally Protected Person in violation of 18 U.S.C. §§ 1116(a), 1116(c), and 1113 (“Count II”). Indictment at ¶¶ 19-22. The Indictment alleges Defendant murdered William Bultemeier, an employee of the United States Department of Defense and a retired United States Army Master Sergeant, and attempted to murder Christopher McNeely, a United States Marine Corps Staff Sergeant, in Niamey, Niger in 2000. Indictment at ¶¶ 2, 5, 9-18.

ANALYSIS

I. Motion to Dismiss Count II of the Indictment

Defendant argues Count II of the Indictment should be dismissed because it charges Defendant with attempted murder, which is barred by the statute of limitations because thirteen years elapsed from the time of the alleged crime to the time of Defendant's Indictment. Def. Mot. at 6-13; Dkt. 69 (“Reply”) at 4-7. Defendant's argument fails.

18 U.S.C. § 3286(b)

states, “notwithstanding any other law, an indictment may be found ... at any time without any limitation for any offense listed in section 2332b(g)(5)(B), if the commission of such offense resulted in, or created a foreseeable risk of, death or serious bodily injury to another person.” 18 U.S.C. § 3286(b) (emphasis added). Attempted murder is an offense listed within 18 U.S.C. § 2332b(g)(5)(B). See 18 U.S.C. § 2332b(g)(5)(B) (listing violation of 18 U.S.C. § 1116 ). Here, the charged conduct, conceded by both Government and Defendant to be “aiding and abetting attempted murder,” involved shooting Christopher McNeely with an AK-47 assault rifle which created a foreseeable risk of such injury and further resulted in serious bodily injury. Reply at 4; Opp. at 7-8; Indictment at ¶¶ 14, 18.

Defendant nonetheless claims that because the charged conduct was alleged to have occurred in 2000, he is subject to the pre-2001 version of 18 U.S.C. § 3286(b)

, which imposed an eight-year statute of limitations for any non-capital violations of 18 U.S.C. § 1116. See 18 U.S.C. § 3286, Historical and Statutory Notes; see also Reply at 5; Indictment. According to Defendant, to hold otherwise would run afoul of the ex post facto clause of the Constitution. Reply at 5-7 (citing Stogner v. California, 539 U.S. 607, 632–33, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003) (holding application of an extension in the statute of limitations made after the original period has expired violated the ex post facto clause)).

In Stogner v. California,

however, the Supreme Court carefully left in place applications of extensions of limitations periods made after the offense but before the expiration of the original period. Reply at 5-6; see also

Stogner, 539 U.S. at 618–619, 123 S.Ct. 2446 (collecting cases) (internal citations omitted). Here, under the eight-year statute of limitations period in effect in 2000, Defendant's statute of limitations would have expired in 2008. However, because the 2001 extension of the limitations period occurred after the 2000 crime but before the expiration of the original period in 2008, applying the extension of the limitations period is appropriate under Stogner. See 18 U.S.C. § 3286, Historical and Statutory Notes.

Defendant argues applying an extension would fall into category two and four of ex post facto clause violations described in Stogner.

Reply at 7. Under category two of Stogner, Defendant argues applying an extension here would make the charged crime “greater than it was[ ] when committed.” See

Stogner, 539 U.S. at 612, 123 S.Ct. 2446 (internal quotation marks, emphasis, and citation omitted). Under category four of Stogner, Defendant argues an extension would “alter[ ] the legal rules of evidence, and receive [ ] less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” Id.

The ex post facto clause violations described in Stogner,

however, do not concern the application of an extension made before the expiration of the original period, and this is fatal to Defendant's argument. The second category of ex post facto violations described in Stogner —making a crime greater than it was when committed—applies “when a new law inflicts punishment upon a person then not subject to that punishment, to any degree[.]” Stogner, 539 U.S. at 613–614, 123 S.Ct. 2446 (emphasis added). This category of ex post facto violations imposes punishment on one who is no longer “liable to any punishment[,]” which is true of anyone who has committed an offense for which the original limitations period is expired. Id. at 613, 123 S.Ct. 2446 (internal citation and quotation marks omitted). A person who has committed a crime for which the limitations period has not expired is subject to the punishment prescribed by law—he simply has not been caught or charged yet. Extending the limitations period, and applying that extension, inflicts punishment upon a person who is then subject to that punishment. Cf.

id. at 614, 123 S.Ct. 2446 (describing the second category of ex post facto violations as involving “inflicting punishments, where the party was not, by law, liable to any punishment”) (internal quotation marks and citation omitted). Similarly, the fourth Stogner category—altering the rules of evidence to receive less or different evidence to convict the offender than was required at the time of the offense—applied in Stogner because the statute of limitations reflects “a legislative judgment that, after a certain time, no quantum of evidence is sufficient to convict.” Id. at 615, 123 S.Ct. 2446 (citation omitted). An extension of the statute of limitations period after the original period has expired is “to permit conviction on a quantum of evidence where that quantum, at the time the new law is enacted, would have been legally insufficient.” Id. at 616, 123 S.Ct. 2446. This is not true of an extension of a statute of limitations period before the original period has expired because the law at the time of the extension still permits conviction based on the same “quantum of evidence.” Cf. id. (finding ex post facto violations exist where “the new law would violate previous evidence-related legal rules by authorizing the courts to receive evidence ... which the courts of justice would not previously have admitted as sufficient proof of a crime”) (internal quotation marks, brackets, and citations omitted).

Defendant concedes Stogner's

rationale relies on the time the new law was enacted, but asks the Court to use the time the offense was committed as a reference instead because “application of an extended statute of limitations ... to prosecute fifteen years later ... offends th[is] principle.” Reply at 7. The Court declines to do so. The Supreme Court in Stogner made a careful, reasoned distinction between expired and unexpired limitations periods. Stogner, 539 U.S. at 618–619, 123 S.Ct. 2446 (collecting cases). Furthermore, federal courts interpreting Stogner have applied that distinction, upholding applications of statute of limitations periods made before the expiration of the original period. See, e.g., Renderos v. Ryan, 469 F.3d 788, 795–96 (9th Cir.2006)

; Costella v. Clark, 08–CV–1010, 2011 WL 940868, at *23 (N.D.Cal. Mar. 18, 2011) (Hamilton, J.) (citing Renderos, 469 F.3d at 793–96 ). Accordingly, Defendant's motion to dismiss Count II is hereby DENIED.

II. Motion to Suppress Defendant's Prior Statements

Defendant argues the Court should suppress all of Defendant's prior statements (the “Statements at Issue”) the Government seeks to admit at trial. Dkt. 66 (“Opp.”) at 9; Reply at 8-9. The Statements at Issue are thus far identified as la, lb, lc, 8, 9, 15, 16, 17, and 18 in Defendant's and the Government's papers. Def. Mot. at 14; Opp. at 9. Specifically, Defendant argues the Court should suppress the Statements at Issue as procured by foreign authorities by compulsion in violation of the Fifth Amendment right of due process and against self-incrimination, and or as procured under compulsion and in violation of Defendant's Miranda rights by American officials. Reply at 11-30. In the alternative, Defendant argues the Court should hold an evidentiary hearing to determine whether the statements were obtained by compulsion or in violation of De...