United States v. Bary, 98–cr–1023 LAK.

• Decision Date: 30 September 2014
• Docket Number: No. 98–cr–1023 LAK.,98–cr–1023 LAK.
• Citation: 57 F.Supp.3d 300
• Parties: UNITED STATES of America, v. Adel Abdel BARY, Defendant.
• Court: U.S. District Court — Southern District of New York

57 F.Supp.3d 300

UNITED STATES of America

v.Adel Abdel BARY, Defendant.

No. 98–cr–1023 LAK.

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

Signed Sept. 30, 2014.

Sean S. Buckley, Adam Fee, Nicholas J. Lewin, Stephen J. Ritchin, Assistant United States Attorneys, Preet Bharara, United States Attorney, Andrew G. Patel, Lauren Kessler, Law Offices of Andrew G. Patel, Linda Moreno, Law Office of Linda Moreno, for Defendant.

MEMORANDUM OPINION

LEWIS A. KAPLAN, District Judge.

Defendant Adel Abdel Bary was indicted in this Court in 2000 for, among other things, conspiring with Usama Bin Laden and others to kill Americans abroad by, among other means, bombing the United States embassies in Nairobi, Kenya, and Dares Salaam, Tanzania, bombings in which 224 people reportedly were killed and many more injured. The matter now is before the Court for decision on whether to accept or reject a plea agreement pursuant to which the government would dismiss the indictment pending against Abdel Bary in exchange for his plea of guilty to a three-count superseding information. The most important practical effect of the plea agreement, were it accepted, would be to limit the maximum term of imprisonment that might be imposed upon Abdel Bary to twenty-five years as compared to the maximum term of life imprisonment were he convicted of all or, indeed, some of the charges in the pending indictment.

Facts

The Indictment

The pending indictment (S7) contains 308 counts. Counts One through Six charge conspiracies to murder, bomb, and maim. Abdel Bary is charged in Count One (conspiracy to kill United States nationals¹ ), Count Three (conspiracy to murder² ), Count Four (conspiracy to use weapons of mass destruction against United States nationals³ ), Count Five (conspiracy to destroy buildings and property of the United States⁴ ), Count Six (conspiracy to attack national defense utilities⁵ ), and Counts Seven through Two Hundred and Eighty–Six (various substantive crimes relating directly to the United States embassy bombings, including 224 counts of premeditated murder⁶ ). Many of these counts require the imposition of a life sentence upon conviction while others permit such a sentence at the discretion of the sentencing court.⁷

The Plea Agreement and the Superseding Information

On September 19, 2014, Abdel Bary entered into a plea agreement under which he agreed, inter alia, to waive indictment, to consent to the filing of a three count superseding information (S15), to plead guilty to the information, and to waive his right to appeal from or otherwise challenge any sentence of up to twenty-five years imprisonment. In return, the government agreed, subject to the Court's approval, to dismiss the open counts against Abdel Bary.

The superseding information (S15) was filed on September 19, 2014, and contains three counts. Abdel Bary is charged in Count One with conspiring in violation of 18 U.S.C. § 844(n) and 844(e) to threaten killing by means of an explosive, in Count Two with making such a threat in violation of 18 U.S.C. § 844(e), and in Count Three with conspiring in violation of 18 U.S.C. § 371 to violate 18 U.S.C. § 2332(a)(1) by killing United States nationals outside the United States.

The pivotal points for purposes of the matter now before the Court are that the superseding information (1) charges in Counts One and Two offenses punishable by no more than ten years imprisonment, and (2) charges in Count Three much the same conspiracy to kill United States nationals as Count One of the S7 indictment, but charges that conspiracy under a statute that imposes a maximum term of imprisonment of five years.⁸ In practical effect, then, the superseding information would eliminate the possibility of life imprisonment and cap Abdel Bary's sentencing exposure at twenty-five years.

On September 19, 2014, Abdel Bary entered a plea of guilty to the superseding information. The Court found the plea constitutionally valid but has not accepted it within the meaning of Federal Rule of Criminal Procedure 11. It explicitly reserved decision as to whether to accept or reject the plea agreement and requested the parties to file memoranda addressing the question whether it should do so. The Court now has had the benefit of those memoranda.

Discussion

Federal Rule of Criminal Procedure 11(c) governs plea agreement procedure. It divides plea agreements for pleas of guilty and nolo contendere into three categories—those in which the government agrees that it will:

“(A) not bring, or will move to dismiss, other charges;

“(B) recommend, or agree not to oppose the defendant's request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request does not bind the court); or

“(C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).”

Courts lack discretion with respect to so-called Type B plea agreements—such agreements must be accepted if they are constitutionally valid and satisfy the requirements of Rule 11(b).⁹ In contrast, courts either may accept or reject Type A and C plea agreements in some circumstances even if the defendant's plea is constitutionally valid and otherwise satisfies Rule 11(b).

The plea agreement now before the Court is a Type A plea agreement because the government has agreed to dismiss the S7 indictment as against Abdel Bary in exchange for his plea of guilty to the S15 information. It therefore is subject to approval or rejection by the Court. As the Second Circuit has stated, “[a] trial judge is not required to accept every constitutionally valid ... guilty plea me[ ]rely because a defendant wishes so to plead ... and may reject a plea in [the] exercise of sound judicial discretion.”¹⁰ Indeed, where, as here, the defendant is “proposing to plead to a lesser offense than the one for which he was indicted, the district court possesse[s] broad latitude to evaluate the proposed plea.”¹¹

The Court's principal initial concern with respect to the plea agreement was that it would limit Abdel Bary's maximum possible term of imprisonment to twenty-five years which, in the circumstances of this case, may be too lenient. To be sure, any twenty-five-year sentence is a severe penalty. Its severity surely is difficult fully to imagine if one has not been imprisoned and is not facing such imprisonment. But it is difficult also to imagine the horror wrought by the conspiracy to which this defendant has pleaded guilty—a conspiracy to kill United States nationals pursuant to which two United States embassies were bombed, 224 people killed, and thousands more injured. Moreover, this defendant conspired with Usama Bin Laden and others committed to a program of killing Americans. In the event of conviction, the factors articulated in the Sentencing Reform Act—most notably, the need for the punishment to reflect the seriousness of the offense, to deter others from similar actions, and to ensure that this defendant is prevented from committing future such acts¹² —arguably counsel a sentence of life imprisonment, a sentence imposed on others in comparable situations. Indeed, “concern that the resulting sentence would be too lenient” is “[a]mong the reasons that may justify the exercise of discretion to reject a plea agreement.”¹³ But it is not the only consideration.

“Charging decisions are generally within the prosecutor's exclusive domain. Prosecutors—representatives of the executive branch of the government—are not mere servants of the judiciary.”¹⁴ Hence, “separation of powers requires that the judiciary remain independent of executive affairs.”¹⁵ While Rules 11 and 48¹⁶ both require the exercise of judicial discretion as a check on certain prosecutorial decisions of this nature, district “ ‘courts should be wary of second-guessing prosecutorial choices' because ‘[c]ourts do not know which charges are best initiated at which time, which allocation of prosecutorial resources is most efficient, or the relative strengths of various cases and charges.’ ”¹⁷ That is so regardless of the precise formulation of the legal standard that circumscribes the scope of that discretion. And these separation of powers considerations are very much at play in this case.

As an initial matter, the government rightly has pointed out that the 279 substantive counts against Abdel Bary in the S7 indictment, which contain all of the counts requiring the imposition of a life sentence upon conviction, focus solely on the embassy bombings. Conviction on any one of them would depend on one of two theories: aiding and abetting the bombings or Pinkerton¹⁸ liability. Conviction on an aiding and abetting theory would require proof that Abdel Bary had foreknowledge of the intended bombings and acted or failed to act with the intention of bringing them about. Pinkerton liability would require the government to establish that the bombings were the foreseeable acts of Abdel Bary's co-conspirators in furtherance of the conspiracy to kill Americans.¹⁹ In its submission, however, the government now has conceded that it is not aware of any evidence that Abdel “Bary assisted in planning for or in carrying out the bombings themselves, or counseled, commanded, induced or procured the bombings.”²⁰ For this and other reasons articulated in its submission, the government submits, “the evidence of the substantive counts relating to the bombings”—especially the evidence that the bombings were foreseeable to Abdel Bary—“is not as strong” as that establishing his participation in a conspiracy to kill Americans.²¹ Thus, while the government has not said so in precisely these words, it has implied that its...