United States v. Mohamed

• Decision Date: 01 May 2015
• Docket Number: No. 13–CR–0527 WFK.,13–CR–0527 WFK.
• Citation: 103 F.Supp.3d 281
• Parties: UNITED STATES of America, Plaintiff, v. Alhassane Ould MOHAMED, Defendant.
• Court: U.S. District Court — Eastern District of New York

103 F.Supp.3d 281

UNITED STATES of America, Plaintiff,

v.Alhassane Ould MOHAMED, Defendant.

No. 13–CR–0527 WFK.

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

Signed May 1, 2015.

Douglas G. Morris, Mildred M. Whalen, Federal Defenders of New York, Inc., Brooklyn, NY, for Defendant.

Zainab Ahmad, Celia Cohen, Samuel P. Nitze, United States Attorneys Office for the Eastern District of New York, Brooklyn, NY, for Plaintiff.

Opinion

WILLIAM F. KUNTZ, II, District Judge:

Alhassane Ould Mohamed (“Defendant”), also known as “Cheibani,” was indicted on September 13, 2013 for one count of murder of an internationally protected person and one count of attempted murder of an internationally protected person. Dkt. 1 (“Indictment”). Defendant was arrested in Mali on November 25, 2013 and has been detained in the Metropolitan Correctional Center in Manhattan, New York, since March 12, 2014 while awaiting trial. On July 15, 2014, the United States Attorney General issued Special Administrative Measures (“SAMs”) governing Defendant's conditions of detention. On January 29, 2015, Defendant filed a motion in limineto vacate the Special Administrative Measures in full or, in the alternative, to vacate or modify various sections of the SAMs. Dkt. 29–1 (“Def.Mot.”) For the reasons stated below, Defendant's motion to vacate or modify the Special Administrative Measures is DENIED in its entirety.

BACKGROUND

Defendant's Personal Background

Defendant is a forty-four-year-old man born in Gao, Mali. Def. Mot. Ex. U at 1.

He has had no formal education and says he cannot read, write, or calculate. Id.at 2. He speaks French and Arabic, but no English. Def. Mot. at 11. He has at various times worked as an apprentice to his father (who was an administrator for forest protection services), as a chauffeur, and as a car and cattle dealer. Id.at 2. His right lung collapsed in March or April of 2007, leaving him with only one lung. Def. Mot. Ex. J at 2.

Defendant's living relatives include a mother, children, and siblings, all in Mali. Def. Mot. Ex. J at 1–2.

Defendant's Alleged Crimes

Defendant is accused of perpetrating an attack against an American Embassy official in Niamey, Niger on December 23, 2000. Def. Mot. Ex. A at 2. On that date, William Bultemeier, Defense Attaché Systems Coordinator at the U.S. Embassy in Niamey, was leaving a Niamey restaurant and approaching his diplomatic vehicle. Id.Defendant allegedly accosted Bultemeier with a pistol, accompanied by an accomplice¹carrying an AK–47. Id.Defendant allegedly demanded that Bultemeier turn over the keys to the car, but when Bultemeier did not obey, Defendant shot him. Id.When Staff Sergeant Christopher McNeely came to Bultemeier's aid, Defendant's accomplice allegedly fired the AK–47 at both McNeely and Bultemeier. Id.Defendant and the accomplice allegedly took Bultemeier's keys from his pockets and drove away in Bultemeier's diplomatic vehicle. McNeely survived after medical evacuation from Niger. Id.Bultemeier died from the gunshot wounds. Id.

Defendant and his accomplice allegedly drove the stolen diplomatic vehicle to Gao, Mali. Id.On December 26, 2000, Malian police discovered the vehicle in Timbuktu, Mali, at which point Defendant's DNA allegedly was discovered in the vehicle. Id.Malian police searched Defendant's home in Gao, and discovered a hidden pistol and items allegedly taken from the stolen vehicle. Id.Thereafter, Defendant was taken into Malian custody. However, in May 2002, after being detained for nearly a year and a half, Defendant allegedly escaped from Malian custody during a medical visit. Id.

On September 13, 2013, Defendant was indicted by a grand jury in the Eastern District of New York for the murder of Bultemeier and attempted murder of McNeely. Id.French military forces apprehended Defendant in northern Mali on November 25, 2013.Id.After his arrest, Defendant was turned over first to Malian authorities and then to the Federal Bureau of Investigations (“FBI”). Def. Mot. at 4. Once in FBI custody, Defendant was flown to New York to face the indictment charge. Id.

Defendant's Alleged Terrorist Connections

The Government alleges Defendant was part of a December 2009 attack on Saudi Arabian officials in Niger, for which he was sentenced to twenty years in prison in Niger. Def. Mot. Ex. A at 2. Defendant allegedly escaped from the prison in Niger in June 2013, accompanied by approximately twenty-one other inmates. The inmates allegedly coordinated with members of the Nigeria-based terrorist group Boko Haram to launch an attack on the prison that killed three guards. Id.at 3. The Government also claims Defendant admitted to being a member of the National Movement for the Liberation of Azawad (“MNLA”), a rebel group that has attacked the governments of Niger and Mali. Id.Defendant was allegedly traveling with three armed members of MNLA at the time of his 2013 arrest by French forces. Id.

The Government further alleges that Defendant informed FBI agents he was close childhood friends with several leaders of the Movement for Unity and Jihad in West Africa (“MUJAO”) but had not been in recent contact with them. Id.The Government, citing the United States Department of State's (the “State Department”) classification, describes MUJAO as a “splinter group” of al-Qaeda in the Islamic Maghreb (“AQIM”); MUJAO is responsible for several violent attacks in the Sahel region, including the abduction of aid workers and diplomats. Id.

Furthermore, according to the Government, Defendant has also admitted to knowing Mokhtar Belmokhtar, the leader of the “al-Qaeda controlled designated terrorist group” the al-Mulathamun Battalion, which claimed responsibility for a January 2013 attack on an Algerian gas facility that killed 38 people. Id.The Government, citing the State Department's account, claims that MUJAO merged with the al-Mulathamun Battalion in August 2013 to create a new group called al-Murabitoun. Id.at 3–4. Defendant allegedly had contacts on both sides of the merger between the organizations.

Defendant argues that the Government relies almost entirely on “guilt by association” to allege most of the aforementioned terrorist affiliations. Def. Mot. at 7. The Government does not show, or even allege, that Defendant is or was a member of MUJAO, AQIM, the al-Mulathamun Battalion, or al-Murabitoun. The only group of which the Government alleges Defendant is a member is the MNLA; it further alleges Defendant “was traveling with three armed members” of the MNLA when he was arrested in 2013. Def. Mot. Ex. A at 3. However, Defendant argues the MNLA differs from the other groups to which the Government attempts to link Defendant in one key way: it has not been designated a foreign terrorist group by the State Department,²and its political goals are local and secular rather than global and motivated by religious fanaticism. Def. Mot. at 7; Def. Mot. Ex. X. Defendant argues that the MNLA is a separatist movement by the Tuareg, a particular ethnic group of “semi-nomadic pastoralists of North African Berber origin” in the northern and western Sahara. Def. Mot. at 7. Thus, of the militant groups referenced by the Government, Defendant argues the only one for which the Government alleges a connection to Defendant beyond acquaintanceship with high-ranking members has a local rather than global agenda.

The Special Administrative Measures

On July 15, 2014, the United States Attorney General (“USAG”) requested the Director of the Federal Bureau of Prisons to impose Special Administrative Measures (“SAMs”) upon Defendant. Def. Mot. Ex. A. The stated purpose of the SAMs is to prevent Defendant from having “communications or contacts with people inside or outside of the prison” that “could result in death or serious bodily injury, or substantial damage to property that would entail the risk of death or serious bodily injury.” 28 C.F.R. § 501.3(a). The SAMs include incarceration in the Special Housing Unit (the “SHU”) at the Metropolitan Correctional Center (“MCC”) in Manhattan, New York. Def. Mot. at 3. Before meeting with Defendant, Defense Counsel and their staff were required to sign an affirmation acknowledging receipt of the SAMs and agreeing to abide by the SAMs' provisions. Def. Mot. Ex. A. at 5–6. Violation of the SAMs can give rise to criminal liability. See, e.g., United States v. Stewart,590 F.3d 93, 98–99, 102–103 (2d Cir.2009)(affirming conviction of attorney Lynne Stewart and translator Mohammed Yousry for conspiracy to defraud the United States by violating SAMs after agreeing to abide by them).

Defense Counsel objected to several provisions of the SAMs in a letter dated October 8, 2014. Def. Mot. Ex. D. The USAG modified the SAMs on November 14, 2014, and again on December 12, 2014. Def. Mot. Exs. A, B, C. However, the modifications failed to satisfy Defendant's objections. The chief objections currently at issue concern Defendant's right to effective representation by counsel and Defendant's allegedly extreme isolation. Def. Mot. Ex. D.

Defense Motion in Limine

On January 29, 2015, Defense Counsel filed a motion in limine(the “Motion”) to vacate the SAMs in full or, in the alternative, to vacate or modify the various sections of the SAMs. Defense Counsel argue the SAMs violate the regulatory basis of 28 C.F.R. § 501.3because they do not serve their stated purpose of preventing from having communications that could result in serious bodily injury. Def. Mot. at 5–9, 22–25. Defense Counsel argue the SAMs subject Defendant to extreme conditions of solitary confinement, which are both unnecessary and cruel. Id.at 10–15. For example, currently, Defendant suffers “intermittent hallucinatory experiences” brought on by his “extreme isolation” in prison. Def. Mot. Ex. U at 2. Defense Counsel also argue the SAMs violate the First, Fifth, and Sixth Amendments. Def. Mot. at 28–39. The Government opposes the Motion in its entirety. Dkt. 36 (“Opp. Mot.”). Defense Counsel filed a memorandum replying to the...