United States v. Al-Farekh
| Decision Date | 16 April 2020 |
| Docket Number | No. 18-943-cr,August Term 2019,18-943-cr |
| Citation | 956 F.3d 99 |
| Parties | UNITED STATES of America, Appellee, v. MUHANAD MAHMOUD AL-FAREKH, Defendant-Appellant |
| Court | U.S. Court of Appeals — Second Circuit |
Richard M. Tucker, Assistant United States Attorney (David C. James, Douglas M. Pravda, Saritha Komatireddy, Assistant United States Attorneys; Alicia Cook, Trial Attorney, Counterterrorism Section, United States Department of Justice, Washington, D.C., on the brief), for Richard P. Donoghue, United States Attorney, Eastern District of New York, Brooklyn, NY, for Appellee.
Lawrence M. Stern (Robert J. Boyle, on the brief), New York, NY, for Defendant-Appellant.
Before: Cabranes, Lohier, Circuit Judges, and Reiss, District Judge.*
Defendant-Appellant Muhanad Mahmoud Al-Farekh ("Al-Farekh") is a U.S. citizen who traveled to Pakistan in 2007 to join Al-Qaeda. He became a leader in the terrorist organization and waged violent jihad against the United States and its allies in the Middle East. As a member of al-Qaeda, Al-Farekh conspired to bomb a U.S. military base in Afghanistan. In 2015, agents of the Federal Bureau of Investigation ("FBI") arrested him in Pakistan and brought him to the United States to be prosecuted for his crimes.**
Following a jury trial, Al-Farekh was convicted of, among other things, using explosives, conspiring to murder U.S. nationals, conspiring to use a weapon of mass destruction, conspiring to bomb a U.S. government facility, and providing material support to terrorists. The U.S. District Court for the Eastern District of New York (Brian M. Cogan, Judge ) sentenced Al-Farekh principally to 45 years’ imprisonment.
Al-Farekh appeals the District Court’s judgment and raises a number of challenges to his conviction and sentence. We decide here three of those challenges, leaving the others to be addressed in a summary order filed simultaneously herewith: (1) whether a district court abuses its discretion where it denies a defense counsel with the appropriate security clearance access to motions filed by the Government ex parte pursuant to section 4 of the Classified Information Procedures Act ("CIPA")1 ; (2) whether a custodial interrogation that takes place overseas over a period of several weeks and involves the display of hundreds of photographs as part of a foreign country’s counterterrorism investigation is unduly suggestive, thereby rendering inadmissible an out-of-court photo identification of the defendant; and (3) whether a district court abuses its discretion when it limits the cross-examination of a fingerprint examiner to preclude references to a fingerprint misidentification in a wholly unrelated case that took place 16 years ago—i.e. , the Brandon Mayfield incident.2
We answer all three questions in the negative. Specifically, we hold that, in the circumstances presented here, the District Court did not err in adjudicating the Government’s CIPA motions ex parte and in camera , admitting the out-of-court photo identification of Al-Farekh, and limiting the cross-examination of the Government’s fingerprint examiner.
In the summary order filed today, we decide the other issues raised in Al-Farekh’s appeal. In sum, the judgment of the District Court is AFFIRMED .
Al-Farekh is a U.S. citizen who was born in 1985 in Houston, Texas and was raised in the United Arab Emirates. Between 2005 and 2007, Al-Farekh attended the University of Manitoba in Canada. According to the Government, Al-Farekh dropped out of college; traveled to Pakistan; joined al-Qaeda; became a senior leader of the terrorist organization; and was responsible for, among other things, conspiring to perpetrate a violent attack against civilian and military personnel in a U.S. military base in Afghanistan.
On January 8, 2015, Al-Farekh was charged by complaint with conspiring to provide material support to terrorists, in violation of 18 U.S.C. § 2339A. Several weeks later, on February 1, FBI agents arrested Al-Farekh in Pakistan and brought him to the United States.
On May 28, 2015, a grand jury returned an indictment charging Al-Farekh for the same offense, and on January 6, 2016, and January 5, 2017, a grand jury returned superseding indictments. Al-Farekh was tried on the basis of the second superseding indictment for the following counts: using explosives in violation of 18 U.S.C. § 844(f)(1)–(2) (Count One); conspiring to murder U.S. nationals in violation of 18 U.S.C. § 2332(b)(2) (Count Two); conspiring to use a weapon of mass destruction in violation of 18 U.S.C. § 2332a(a) (Count Three); conspiring to use a weapon of mass destruction by a U.S. national in violation of 18 U.S.C. § 2332a(b) (Count Four); conspiring to bomb a U.S. government facility in violation of 18 U.S.C. § 2332f (Count Five); conspiring to provide, attempting to provide, and providing material support to terrorists in violation of 18 U.S.C. § 2339A(a) (Counts Six and Seven); and conspiring to provide, attempting to provide, and providing material support to the Foreign Terrorist Organization al-Qaeda in violation of 18 U.S.C. § 2339B (Counts Eight and Nine).
The Government’s case against Al-Farekh included classified material. On June 30, 2016, the Government filed an ex parte classified motion for a protective order pursuant to § 4 of CIPA, which Al-Farekh opposed. On August 23, 2016, after reviewing the classified materials, the District Court granted the Government’s ex parte motion. On April 28, 2017, the Government filed ex parte a supplemental CIPA motion, which the District Court granted on May 24, 2017.
The Government’s case against Al-Farekh also included testimony by a former al-Qaeda collaborator and later Government witness residing in the Middle East. On November 8, 2016, the Government filed a motion for leave to take the witness’s testimony by deposition pursuant to Federal Rule of Criminal Procedure 15. To protect the witness’s safety and that of his family, the Government also asked the Court to permit the witness to testify under a pseudonym and to limit the cross-examination into the witness’s identity, country of origin, nationality, current location, and his ongoing cooperation with authorities. The Government did not, however, seek to limit its disclosures to Al-Farekh on these subjects. On December 9, 2016, the District Court granted the motion.
On March 14, 2017, the witness, who testified under the pseudonym "Sufwan Murad," was deposed. Murad was the driver and bodyguard of al-Qaeda leader Haji Mohammed. Murad testified that he saw a person he knew as Abdullah al-Shami, a senior official of al-Qaeda’s external operations group, on two separate occasions while driving Mohammed to deliver monthly stipends to the members of al-Shami’s al-Qaeda brigade. Murad described both encounters in significant detail. Murad also identified a photograph of Al-Farekh as depicting the person he knew as al-Shami.
The able district judge presided over the Rule 15 deposition. On July 8, 2017, Al-Farekh moved to suppress Murad’s out-of-court photo identification of Al-Farekh and the related testimony regarding Al-Farekh’s membership in al-Qaeda. The District Court denied the motion.
The trial of Al-Farekh started on September 12, 2017, and lasted approximately two weeks.
As a student at the University of Manitoba, Al-Farekh joined the Muslim Students Association, where he met and befriended his future al-Qaeda co-conspirators, Ferid Imam and Maiwand Yar. Al-Farekh, Imam, and Yar discussed and exchanged radical jihadist videos, including some lectures by Anwar al-Awlaki, a now-deceased terrorist who was the leader of al-Qaeda in the Arabian Peninsula. On March 8, 2007, Al-Farekh, Imam, and Yar dropped out of college and flew from Canada to Pakistan, where they headed to the Federally Administered Tribal Areas to join al-Qaeda.
On January 19, 2009, two vehicles carrying vehicle-borne improvised explosive devices ("VBIED") approached Forward Operating Base Chapman, an important U.S. military base in Afghanistan. The plan was for the first vehicle to detonate its VBIED at the gate so the second vehicle could detonate its significantly larger and more powerful VBIED inside the base and maximize the number of casualties and damage. The first VBIED exploded as planned, injuring several Afghan nationals and a U.S. soldier; the second vehicle was stuck in the crater caused by the first VBIED and did not explode. The driver of the second vehicle was shot and killed after abandoning the vehicle. Latent fingerprints and a hair follicle were recovered from adhesive packing tape in the undetonated VBIED. According to the Government, 18 fingerprints and the hair follicle were matched to Al-Farekh.
During the Government’s case-in-chief, Al-Farekh’s counsel, through rigorous cross-examination, focused on undermining the credibility of the Government’s witnesses and the reliability of its evidence. During his own case-in-chief, Al-Farekh did not call any witnesses but introduced a stipulation recounting certain inconsistent, out-of-court statements by Murad and another Government witness.
On September 29, 2017, the jury found Al-Farekh guilty of all nine counts of the second superseding indictment. On March 13, 2018, the District Court sentenced Al-Farekh principally to 45 years’ imprisonment.
On appeal, Al-Farekh challenges many of the District Court’s evidentiary rulings, as well as the reasonableness of his sentence. As stated above, we address here only three of the challenges to his conviction: (1) whether the District Court erred in reviewing and adjudicating the Government’s CIPA motions ex parte and in camera ; (2) whether the District Court erred in admitting Murad’s out-of-court photo identification of...
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