United States v. Trabelsi
| Docket Number | 06-cr-89 (RDM) |
| Decision Date | 05 June 2023 |
| Parties | UNITED STATES, v. NIZAR TRABELSI, Defendant. |
| Court | U.S. District Court — District of Columbia |
In April 2006, a grand jury returned an indictment against Defendant Nizar Trabelsi containing four counts, two of which the government later dismissed. Dkt. 3. The two remaining counts allege that Trabelsi conspired to kill U.S. nationals outside the United States, in violation of 18 U.S.C §§ 2332(b)(2) and 1111(a), and conspired and attempted to use weapons of mass destruction, in violation of 18 U.S.C. §§ 2332a and 2.[1] Dkt. 6 at 1-9. Among other overt acts, the indictment alleges that Trabelsi “met with Osama bin Laden” in the Spring of 2001 near Kandahar, Afghanistan “and offered to carry out a suicide bomb attack against United States interests,” Dkt. 6 at 6; that he “obtained money from an al Qaeda associate for use in carrying out his mission to bomb a United States target,” id. at 7; that in July and August 2001, Trabelsi “bought quantities of chemicals” in Belgium “to be used in manufacturing a 1,000-kilogram bomb,” id. at 8; and that he “traveled at night with conspirators to scout the Kleine- Brogel Air Force Base-a facility used by the United States and the United States Department of the Air Force, and at which United States nationals were present-as a target for a suicide bomb attack,” id. In 2013, after serving a ten-year sentence in Belgium for, among other things, attempting to destroy the Kleine-Brogel Air Force Base, see Dkt. 367-3 at 24, Trabelsi was extradited to the United States on the instant charges. Trial commenced with jury selection on May 8, 2023.
Before trial began, the Court authorized the government to take a videotaped deposition of a foreign-national witness living in France “in order to preserve [her] testimony for trial.” Fed. R. Crim. P. 15(a)(1); see Dkt 578. The government now moves to admit that video-taped deposition at trial, Dkt. 588, and Trabelsi has cross-moved to strike that testimony from the record, Dkt. 590.[2] Trabelsi argues that admitting this testimony would violate his Sixth Amendment right to “be confronted with the witnesses against him,” U.S. Const, amend. VI, because, among other things, the deposition occurred via videoconference and because he was provided, in his view, an insufficient opportunity to cross-examine the witness during the time allotted for the deposition. For the reasons that follow, the Court will GRANT the government's motion, Dkt. 588, and will DENY the defendant's cross-motion, Dkt. 590.
I. BACKGROUND
In January 2023, the government moved to take the deposition of Ms. Amal[3]-a foreign-national witness living in France-pursuant to Federal Rule of Criminal Procedure 15. See Dkt. 501; Dkt. 505. That rule allows for “a prospective witness [to] be deposed in order to preserve testimony for trial” if merited by “exceptional circumstances and in the interest of justice.” Fed. R. Crim. P. 15(a)(1). In support of its Rule 15 motion, the government represented that Ms. Amal was in a relationship with Trabelsi between 2000 and 2001 and could, as a result, provide “unique testimony about Trabelsi's criminal conduct, including his travel to Afghanistan where he met Osama bin Laden, enlisted to become a martyr, and received training to commit an attack.” Dkt. 505 at 6. The government further explained that a deposition was necessary to preserve this material testimony because the witness had “definitively stated [to government counsel] that she [was] not willing to travel to the United States to testify,” Dkt. 544 at 1, notwithstanding the government's “long, diplomatic face-to-face discussions with [her] about the importance of her testimony,” Dkt. 570-1 at 2. The government also reported that Ms. Amal had reluctantly agreed to travel to Paris for a two-day video deposition, but-due to severe ongoing medical concerns with her children and the fact that she had to travel away from her family to Paris for the deposition-had “agreed to testify ... only for two days.” Id. at 2-3 (emphasis omitted).
Trabelsi, who was pro se at the time but was assisted by standby counsel in briefing the Rule 15 motion, opposed the pretrial deposition. He contested the government's representations that Ms. Amal was unavailable for trial and argued, most centrally, that a two-day deposition would be “insufficient” to cross-examine this “key witness.” Dkt. 506 at 5-6; see also Apr. 19, 2023 Hrg. Tr. (Rough at 15-16).
After briefing and argument on the Rule 15 motion, this Court authorized the government to proceed with its proposed two-day deposition. Dkt. 578. The Court concluded that “exceptional circumstances” merited a Rule 15 deposition because the government had established both “the materiality of [Ms. Amal's] testimony” and “the unavailability of the witness to testify at trial.” Dkt. 578 at 3 (quoting United States v. Cooper, 947 F.Supp.2d 108, 112 (D.D.C. 2013)); see also United States v. Johnpoll, 739 F.2d 702, 709 (2d Cir. 1984) (). As to materiality, the Court noted that Ms. Amal- unlike the other witnesses in the case-was apparently prepared to testify “firsthand” about “loading ammunition belts for the defendant in Afghanistan;” about witnessing “the defendant's radicalization and the path he traveled ... in his effort to become a martyr;” and about Trabelsi's “relationship with ... Djamel Beghal and Jerome Courtailler, who have both been convicted of terrorism offenses.” Dkt. 578 at 4 (quoting Dkt. 505 at 6). There was a substantial likelihood, moreover, that the witness would not testify at trial: she is not only beyond the Court's subpoena power, but she had also, by then, “definitively stated that she [was] not willing to travel to the United States to testify.” Id. at 5-6 (quoting Dkt. 544 at 1). The Court also concluded that “it [was] very unlikely that Ms. Amal w[ould] have a change of heart and . .. decide to come to the United States to testify” at trial in light of the government's representations that she “is terrified of the defendant” and that two of her minor children “were struck by a car in March and [were] seriously injured.” Id. at 6 (internal quotation marks omitted). The Court noted, on this point, that Ms. Amal's [Redacted] daughter “was required to remain in bed, immobile” as a result of that accident, and that, as of mid-April, her daughter “continue[d] to receive medical care,” [Redacted]. Id. (quoting Dkt. 570-1 at 2).
The Court further concluded that Fed. R. Crim. P. 15(c)(3) allowed the government to “tak[e]” this deposition “outside the United States ... without the defendant's presence.” Id. at 8. Critically, the Court explained, Trabelsi could not be “present [in France]” for the deposition because his “secure transportation and continuing custody c[ould not] be assured at the witness's location.” Dkt. 578 at 9 (quoting Fed. R. Crim. P. 15(c)(3)(D)-(E)). In particular, Stephen Panepinto, Chief of the Office of International Operations in the United States Marshals Service, attested that “[t]he United States Marshals Service does not have authority to maintain custody of a prisoner in a foreign country,” id. ()), and that it “would be impossible for the U.S. Marshals to enforce” the Special Administrative Measures (SAMs) to which Trabelsi is subject “while . .. Trabelsi is within a European country,” id. (quoting Dkt. 526-1 at 2 (Panepinto Decl. ¶ 7)).
Finally, the Court addressed Trabelsi's Confrontation Clause concern as to the limited length of the deposition. The Court explained that, although “the Confrontation Clause guarantees an opportunity for effective cross-examination,” it does not guarantee “crossexamination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam). And “at the outset and before the deposition ha[d] even begun,” the Court could not conclude that “a two-day deposition w[ould] provide insufficient opportunity for Trabelsi to [effectively] cross-examine Ms. Amal- especially in light of the government's reported efforts to limit the length of its direct examination.” Dkt. 578 at 13 (emphasis added). Drawing on its observation that “many (indeed, most) of [the] questions” Trabelsi had asked of two prior witnesses who appeared at a suppression hearing “were argumentative, repetitive, or irrelevant,” the Court also warned Trabelsi that he should “limit his examination to proper and relevant questions within the scope of the government's direct examination of its witness” and, as it had on several prior occasions, encouraged him “to focus his deposition preparation to ensure that he ha[d] time to ask the witness those questions that are necessary to his defense.” Dkt. 578 at 13-14; see also Apr. 25, 2023 p.m. Hrg. Tr. (Rough at 4-5) (“[I]t's . .. very important that [Trabelsi] be as efficient as he can and that he ask questions that are relevant[,] that are questions and not testimony[,] that are short and to the point[,] and [that] relate to the direct testimony that the government is eliciting, . . . includ[ing,] if appropriate[,] impeachment of that testimony.”). He could not, the Court cautioned, “deprive the government of a witness by engaging in significant, unnecessary delay” during the deposition. Dkt. 578 at 14.[4]
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