United States v. Koubriti

• Decision Date: 21 June 2006
• Docket Number: No. 01-CR-80778.,01-CR-80778.
• Citation: 435 F.Supp.2d 666
• Parties: UNITED STATES of America, Plaintiff, v. Karim KOUBRITI, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

435 F.Supp.2d 666

UNITED STATES of America, Plaintiff, v. Karim KOUBRITI, Defendant.

No. 01-CR-80778.

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

June 21, 2006.

Leroy T. Soles, Richard M. Helfrick, James R. Gerometta, Federal Defender Office, Detroit, MI, for Defendant.

Alan M. Gershel, Eric M. Straus, United States Attorney's Office, Detroit, MI, Craig S. Morford, U.S. Attorney's Office, Cleveland, OH, for Plaintiff.

OPINION AND ORDER REGARDING DEFENDANT'S MOTIONS TO DISMISS

ROSEN, District Judge.

I. INTRODUCTION

This matter is presently before the Court on two motions for dismissal of the Fourth Superseding Indictment filed by Defendant Karim Koubriti: (1) Defendant's July 26, 2005 "Motion to Dismiss Fourth Superseding Indictment on Due Process Grounds," and (2) Defendant's July 28, 2005 "Motion to Dismiss for Violation of the Double Jeopardy Clause of the Fifth Amendment." The Government has responded to both Motions.

The Court heard oral argument on this matter on May 1, 2006. At the conclusion of the May 1 hearing, the Court ordered supplemental briefing from the parties specifically addressing Defendant's due process argument and his allegations concerning the "taint" of the evidence giving rise to his prosecution for mail fraud as a result of the findings of prosecutorial misconduct in connection with the prosecution of the Third Superseding Indictment. The parties have complied with the Court's directive for supplementation of the record. Having reviewed and considered the parties briefs and the oral arguments of counsel, the Court is now prepared to rule on this matter. This Opinion and Order sets forth the Court's ruling.

II. PERTINENT FACTS

A. THE FOURTH SUPERSEDING INDICTMENT

Karim Koubriti is presently charged in a Fourth Superseding Indictment with Conspiracy to Commit Mail Fraud. The charges against Mr. Koubriti are predicated upon a scheme to defraud Titan Insurance Company by filing a false automobile insurance claim in the summer of 2001. According to the indictment, Defendant Koubriti and his co-defendant, Ahmed Hannan, falsely claimed to have been physically injured in a July 5, 2001 motor vehicle accident in Dearborn, Michigan.¹ Hannan claimed to have suffered injury to his "back and left leg," and Koubriti claimed injury to his "back and neck." The two men claimed to have sought treatment for their injuries at Oakwood Hospital in Dearborn, then purportedly treated with Dr. Nabil Metwally, M.D. in Farmington, Michigan and at Rudy Physical Therapy in Dearborn.

The indictment further charges that Koubriti and Hannan submitted to Titan Insurance Company ("Titan") false claims for lost wages and fictitious mileage expenses, and submitted various false and fraudulent invoices and other fraudulent documentation for physical therapy and household replacement services which were never provided. In particular, the indictment alleges that during the times and dates on the claims for lost wages and on the invoices reflecting physical therapy, Koubriti and Hannan were employed or in driving school.

B. KOUBRITI'S TRIAL ON THE THIRD SUPERSEDING INDICTMENT

Koubriti was previously charged in a Third Superseding Indictment with Conspiracy to Provide Material Support to Terrorists and various document fraud offenses (the "Terrorist Indictment."). The allegations in this indictment were very broad and ranged from providing money to terrorist groups overseas to planning attacks on the United States. One element of the alleged conspiracy was a plan to commit fraud in order to both support terrorist activities and to "to cause economic harm to U.S. businesses." [Terrorist Indictment, Count One, ¶¶ 9, 10(a) ]. The indictment charged as one of the "overt acts" of the conspiracy that Defendants Koubriti and Hannan were involved in a traffic accident in Dearborn, Michigan on July 5, 2001 in Dearborn, Michigan. Id. ¶ 25.

Evidence of these general allegations was presented at trial in April-May 2003 through the testimony of Youssef Hmimmsa. Hmimmsa testified regarding the Defendants' alleged involvement in "economic jihad." Hmimmsa testified that Hannan, Koubriti, and Farouk Ali-Haimoud met with an unidentified Tunisian regarding how to fake an automobile accident and defraud insurance companies. 4/15/03 Trial Tr. pp. 187, 191-192. The Government later introduced the testimony of Kathleen Gleason, regional claims manager for Titan. Ms. Gleason testified that Hannan and Koubriti submitted insurance claims to Titan arising out of the July 5, 2001 auto accident. Titan, however, denied the claims of both men because the insurer believed that the claims were fraudulent. Titan had discovered that the two men were taking truck driving classes when they claimed to be too injured to work and were attending classes when they were supposed to have been receiving medical treatment. 4/25/03 Trial Tr. pp. 4330-4333.

The Government also introduced Titan's records showing claims were made for payment for physical therapy treatments for Defendants Hannan and Koubriti, and also showed that requests were made for household service payments. According to the household service payment forms, Ahmed El-Kattan performed services for Defendant Hannan, and Farouk Ali-Haimoud performed services for Defendant Koubriti. 4/23/03 Trial Tr. pp. 4073-4074. El-Kattan testified, however, that he had performed no household services for Mr. Hannan after his accident. Id. at pp. 4069-72.

In its closing argument, the Government stated that the Defendants had committed insurance fraud, 5/19/03 Trial. Tr. pp. 6030, 6033, and that the July 5, 2001 accident was part of the "jihad" — the conspiracy to provide material support to terrorism — at least implying that the fruits of the fraud would be used to support terrorist activities. Id. at pp. 6046-47.

C. POST-TRIAL PROCEEDINGS

On June 3, 2003, the jury returned a verdict finding Defendant Koubriti guilty on Counts One and Two of the Third Superseding Indictment, i.e., Conspiracy to Provide Material Support or Resources to Terrorists and Conspiracy to Engage in Fraud and Misuse of Visas, Permits or other Documents. Following the verdict, Defendant filed a Motion for Judgment Notwithstanding the Verdict, or in the Alternative, for New Trial (referred to herein as "Motion for New Trial"). While Defendant's Motion for New Trial was pending,' the Court was made aware of exculpatory evidence which had not been disclosed to the Defendants — including Defendant Koubriti — or the Court. The Court conducted a full hearing on this and related matters on December 12, 2003, and following the hearing, ordered a complete file review by the Government of the case. The United States Attorney General appointed a special counsel to conduct this review. Following an exhaustive review, spanning more than nine months and thousands of documents, the Government filed a Response concurring in Defendant's Motion for New Trial in which it moved the Court to dismiss Count One of the indictment — the material support to terrorism charge upon which Koubriti was convicted — without prejudice.

The Government's Response to the New Trial Motion comprehensively detailed the results of its review and disclosed numerous instances of nondisclosure of material information to the defense and other instances of prosecutorial failure to comply with its Brady and Giglio obligations. Taking only a few instances, the review disclosed that the CIA and Turkish National Police, Intelligence Division had a different opinion of the sketches in a day planner presented as evidence of Defendants' involvement in terrorist activities² than that which the Government presented to the jury, exculpatory evidence which was never shared with the defense or the Court. The review further revealed that some officials within the U.S. Air Force agreed with the defense theory regarding a Hardened Aircraft Shelter, i.e., that it was a map of the Middle East. This, too, was never disclosed to the defense.

Nor was the fact disclosed that photos were requested and obtained relating to a Day Planner sketch purporting to be a map to, and of, the Queen Alia Hospital in Jordan.³ It was further not disclosed to the defense that the Las Vegas FBI had a very different opinion regarding a Las Vegas "casing tape" of the MGM Hotel/Casino and that the dialect on the tape — Tunisian — was posing problems for government interpreters, both of which were significant issues at trial.

The Government's review also revealed that potentially harmful impeachment information relating to the Government's primary witness on the terrorism charges, Youssef Hmimmsa, and his virulent anti-American views had not been disclosed to the defense or the Court. Finally, the Government never disclosed to the defense or the Court that it had used a convicted felon, Marwan Farhat, to assist in the translation of Arabic audio tapes. The correct translations of these tapes was also a significant issue at trial.

After considering the Government's Response, on September 2, 2004 the Court ordered that Count One of the Third Superseding Indictment be dismissed without prejudice, and ordered a new trial on Count Two.⁴ However, rather than pursuing a new trial on the remaining charge against Defendant Koubriti in Third Superseding Indictment (the document fraud conspiracy charged in Count Two), on December 15, 2004, the Government obtained from the grand jury the Fourth Superseding Indictment which alleges only one count — the Mail Fraud conspiracy count discussed above.⁵

Contending that his prosecution on the Fourth Superseding Indictment violates double jeopardy and his due process rights, Defendant now moves to dismiss the indictment.

III. DISCUSSION

A. DOUBLE JEOPARDY

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy." U.S Const., amend. V. However, the Double Jeopardy Clause's...