United States v. Al Fawwaz
United States v. Al Fawwaz
Opinion of the Court
MEMORANDUM OPINION
Defendants Khalid al Fawwáz and Anas al Liby were indicted 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 Dar es Salaam, Tanzania, bombings in which 224 people reportedly were killed
Facts
Al Fawwaz is charged on superseding indictment S7, and al Liby is charged on S10. Both contain 308 counts. Al Fawwaz and al Liby each is charged in Count One (conspiracy .to kill United States nationals), Count Three (conspiracy to murder), Count Five (conspiracy to destroy buildings and property of the United States), and Count Six (conspiracy to attack national defense utilities). Neither is charged in the remaining counts, which involve other defendants.
On October 21, 2013, the government requested a joint trial on the ground that each defendant “was joined in a single indictment, and each defendant is charged for his participation in identical conspiracies.”
The Court nonetheless explicitly permitted defendants to renew their motions for severance and/or to empanel separate juries.
Discussion
I. Severance
Joint trials “play a vital role in the criminal justice system” by, among other things, promoting prosecutorial and judicial efficiency and “avoiding the scandal and inequity of inconsistent verdicts.”
Nonetheless, Federal Rule of Criminal Procedure 14(a) provides that a district court may sever defendants’ trials “[i]f the joinder of offenses or defendants in an indictment, an information, ór a consolidation for trial appears to prejudice a defendant.” The Supreme Court has explained that severance is warranted “only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.”
Moreover, Rule 14 “leaves the tailoring of the relief to be granted, if any, to the district court’s sound discretion.”
Al Fawwaz and al Liby each argues that severance is warranted because evidence admissible against his co-defendant will cause a prejudicial spillover effect.
1. Prejudicial Spillover
Al Fawwaz and al Liby separately contend that severance is necessary to avoid the prejudicial impact of evidence that the government will introduce against the other defendant. Al Fawwaz argues that a joint trial “poses a risk of prejudicial spillover to Al Fawwaz ... if the government offers evidence of Al Liby’s post-indictment activities and reference to events of September 11, 2001 and its aftermath.”
These arguments assume that the government will seek to introduce evidence, in a joint trial, which is admissible against one defendant but not the other. However, “[w]here a defendant is a member of a conspiracy, all the evidence admitted to prove that conspiracy, even evidence relating to acts committed by co-defendants, is admissible against the defendant.”
Al Fawwaz and al Liby are charged as co-conspirators in identical offenses. Accordingly, much — if not all — of the evidence admissible against al Liby relating to his alleged participation in these conspiracies is likely to be admissible also against al Fawwaz and vice-versa.
2. Media Coverage
Al Fawwaz contends also that media coverage of al Liby’s 2013 arrest, violence in Nairobi, and other acts or terrorism will result in a “detrimental spillover effect” on him.
First, al Fawwaz has not even attempted to explain how severance would remedy the news coverage of which he complains. Even assuming that al Liby’s capture “regurgitated coverage of the 1998 embassy bombings,”
Second, the Court has taken several precautions to mitigate the purported risks that al Fawwaz apprehends. Prospective jurors will complete a questionnaire designed to uncover potential bias, including whether they have seen, heard, or read anything about Khalid al Fawwaz, Anas al Liby, or the 1998 bombings of the U.S. embassies in Kenya and Tanzania. The Court will conduct oral voir dire of prospective jurors who remain, and the par
3. Al Liby’s Medical Condition
Finally, al Liby seeks a severance “premised upon [what his counsel characterizes as] Mr. al Liby’s dire, and terminally ill medical condition.”
The decision to grant severance based on a defendant’s medical condition is left to the discretion of the trial court. In Bernstein v. Travia,
“Whether a defendant’s physical condition is so poor as to require a continuance or severance is not only a difficult determination for a judge to make, but it is one which carries with it tremendous responsibility of weighing the invariably unpredictable factor of a defendant’s health against the Government’s, indeed the public’s, legitimate interest in a fair and speedy disposition. Troublesome though it may be, however, that decision, as we have repeatedly held, ... is one reserved to the sound discretion of the district Judge.”33
United States v. Doran
These, taken together, do not weigh sufficiently in al Liby’s favor. The Court has received medical evidénce and reports on al Liby’s condition on a number of occasions.
II. Multiple Juries
Defendants seek alternatively to empanel multiple juries. Several courts have found that “the use of a dual jury system may very well be a reasonable response to prejudicial joinder.”
Multiple juries are not appropriate here. As discussed above, defendants have not demonstrated a risk of substantial prejudice from a joint trial sufficient to warrant such a procedure. Additionally, the circumstances of this trial would not accommodate the use of multiple juries. This case is far from “uncomplicated” due, among other things, to the anticipated length of the trial, the number of witnesses and exhibits, the need to translate the proceedings into Arabic for the defendants, the need for extensive security measures, and the use of an anonymous jury. The complexity of this case and defendants’ failure to offer a persuasive basis justifying such a procedure render the use of a dual jury procedure improper.
In urging otherwise, al Fawwaz contends that there would be an “unavoid
Here, there is no basis, for concluding that al Liby ever has made a statement explicitly or impliedly implicating al Faw-waz. Because Bruton concerns arise only where a non-testifying defendant has “directly implicated”
Nor has al Fawwaz provided any reason to believe that multiple juries are necessary because the case “will be tried in a post-9/11 era.”
Conclusion
Defendants have failed to demonstrate that a joint trial would compromise a specific trial right or prevent the jury from making a reliable judgment of guilt or innocence. The Court therefore has denied the motions [DI 1674, 1677] to sever or, in the alternative, to empanel multiple juries.
SO ORDERED.
. Ltr. from S. Buckley to Court (Oct. 21, 2013) [DI 1403], at 1.
. Order (Dec. 12, 2013) [DI 1400],
. See Mem. Op. (Sept. 30, 2014) [DI 1739] (accepting plea agreement).
. Hr'g Tr. (Dec. 12, 2013) [DI 1454], at 14-15.
. Hr’g Tr. (Sept. 3, 2014), at 13-14.
. Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (internal quotation marks omitted).
. United States v. Salameh, 152 F.3d 88, 115 (2d Cir. 1998); see also United States v. Bin Laden, 109 F.Supp.2d 211, 214 n. 7 (S.D.N.Y. 2000) (“It is well established that conspiracy allegations, such as the five with which all seventeen Defendants are charged in this case can serve as a 'common link’ justifying join-der of Defendants in a single indictment.”).
. Zafiro, 506 U.S. at 539, 113 S.Ct. 933.
. United States v. Amato, 15 F.3d 230, 237 (2d Cir. 1994) (internal quotation marks omitted).
. Zafiro, 506 U.S. at 540, 113 S.Ct. 933.
. Id. at 539, 113 S.Ct. 933.
. United States v. Feyrer, 333 F.3d 110, 113 (2d Cir. 2003).
. United States v. Walker, 142 F.3d 103, 110 (2d Cir. 1998); accord United States v. Page, 657 F.3d 126, 129 (2d Cir. 2011).
. Al Fawwaz Mem. of Law for Severance and Two Juries [DI 1675], at 4-5; Ltr. from B. Kleinman to Court (Aug. 1, 2014) [DI 1677], at 3-4; Ltr. from B. Kleinman to Court (Dec. 1, 2013) [DI 1386], at 4-7.
. DI 1675, at 4; see also Ltr. from B. Stern-heim to Court (Dec. 2, 2013) [DI 1404],
. DI 1677, at 1; Decl. & Mem. in Support of Def. Mot. for Severance (July 14, 2014) [DI 1647] (under seal); Mem. of Law in Support of Mot. for Severance (June 18, 2014) [DI 1637] (under seal).
. Ltr. from B. Sternheim to Court (Aug. 21, 2014) [DI 1698], at 1; see also DI 1675 at 4-5.
. DI 1386, at 5; see also DI 1677, at 3-4.
. Salameh, 152 F.3d at 111.
. United States v. Al Fawwaz, 98 Crim. 1023(LAK), 2013 WL 3111043, at *2 & n. 12 (S.D.N.Y. June 20, 2013) (quoting United States v. Rosa, 11 F.3d 315, 341 (2d Cir. 1993)).
. Moreover, the government will not — as al Fawwaz claims — seek to introduce evidence of unrelated acts of terrorism that occurred after the late 1990s. See Gov't Opp. to Severance and Dual Juries [DI 1688], at 8.
. Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987).
. DI 1675, at 4.
. Id,
. E.g., Benjamin Weiser, U.S. Asserts Terror Suspect Has Implicated Himself, N.Y. Times, Oct. 23, 2013, available at http//www.nytimes. com/2013/10/23/nyregion/prosecutor-cites-statement-by-terror-suspect.html; David V. Kirkpatrick et al., U.S. Raids in Libya and Somalia Strike Terror Targets, N.Y. Times, Oct. 5, 2013, available at http//www.nytimes.com/ 2013/10/06/worId/africa/Al-Qaeda-Suspect-Wanted-in-USSaid-to-Be-Taken-in-Libya. html?pagewanted=all; US Capture Libyan al-Qaida Leader Anas al-Lby, Officials Say, The Guardian, Oct. 5, 2013, available at http:// www.theguardian.com/world/2013/oct/06/us-capture-al-qaida-leader-anas-liby-libya.
. Amato, 15 F.3d at 237 (internal quotation marks omitted).
. See Mem. Op. (Sept. 30, 2014) [DI 1740], at 7.
. Skilling v. United States, 561 U.S. 358, 399 n. 34, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010).
. Zafiro, 506 U.S. at 539, 113 S.Ct. 933.
. DI 1647, at 1 (under seal).
. See Ltr. from S. Ritchin to Court (July 2, 2014) (under seal).
. 495 F.2d 1180 (2d Cir. 1974).
. Id. at 1182 (footnote and citations omitted).
. 328 F.Supp. 1261 (S.D.N.Y. 1971).
. Id. at 1263; accord United States v. Gambino, 809 F.Supp. 1061, 1077 (S.D.N.Y. 1992).
. See, e.g., DI 1647, Ex. A (under seal); DI 1637, Exs. A-C (under seal).
. Hr’g Tr. (Sept. 3, 2014), at 13.
. Wilson v. Simons, 536 F.3d 1064, 1099 (10th Cir.), reh’g en banc granted, 549 F.3d 1267 (10th Cir. 2008), opinion reinstated sub nom. Wilson v. Workman, 577 F.3d 1284 (10th Cir. 2009); see also United States v. Gray, 173 F.Supp.2d 1, 7 (D.D.C. 2001) (recognizing that a "two-jury trial may comport with the requirements of due process”); United States v. Lebron-Gonzalez, 816 F.2d 823, 831 (1st Cir. 1987) (noting that "resort to this measure [of empaneling two juries] was a way of minimizing any prejudice from jointly trying the defendants”).
. United States v. Lewis, 716 F.2d 16, 23 (D.C.Cir. 1983) (internal quotation marks omitted).
. Wilson, 536 F.3d at 1099.
. Id.
. United States v. Bin Laden, 109 F.Supp.2d 211, 215 n. 8 (S.D.N.Y. 2000) (internal quotation marks omitted) (rejecting a request to empanel multiple juries), off d sub nom. In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 93 (2d Cir. 2008).
. DI 1675, at 8.
. Richardson, 481 U.S. at 206, 107 S.Ct. ■1702.
. 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
. 481 U.S. 200, 107 S.Ct. 1702.
. Id. at 207-08, 107 S.Ct. 1702 (citing Bruton, 391 U.S. at 124, 135-36, 88 S.Ct. 1620).
. 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998).
. United States v. Jass, 569 F.3d 47, 60 (2d Cir. 2009).
. Gray, 523 U.S. at 192, 118 S.Ct. 1151.
. DI 1675, at 10.
. See Zafiro, 506 U.S. at 539-40, 113 S.Ct. 933.
Reference
- Full Case Name
- United States v. Khalid AL FAWWAZ and Anas Al Liby
- Cited By
- 2 cases
- Status
- Published