United States v. Salameh

Citation: 16 F. App'x 73Docket: Nos. 99-1619(L), 99-1620(CON), 99-1621(CON) and 99-1623(CON)

Court: Court of Appeals for the Second Circuit; August 6, 2001; Federal Appellate Court

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The decision from the United States District Court for the Southern District of New York is affirmed, following a jury trial in 1994 that resulted in the convictions of defendants Mohammed Salameh, Nidal Ayyad, Mahmoud Abouhalima, and Ahmad Ajaj for their roles in the World Trade Center bombing conspiracy. Each was originally sentenced to 240 years in prison. In 1998, the appellate court upheld the convictions but vacated the sentences and remanded for resentencing, while also declining to address claims of ineffective assistance of counsel, directing those claims back to the district court.

Subsequent hearings led to the district court denying the motions for a new trial and imposing lengthy prison terms, along with fines and restitution for each defendant. The appellate court reviews the district court's denial of a new trial under an abuse of discretion standard and accepts its factual findings unless clearly erroneous. The defendants sought a new trial based on allegations of perjury by FBI Agent David Williams, referencing an Inspector General's Report that criticized his testimony. Despite acknowledging inaccuracies in Agent Williams's testimony, the appellate court concluded that the defendants failed to meet the necessary criteria for a new trial under Rule 33, including that the evidence could not have been discovered sooner, was material, non-cumulative, and would likely lead to acquittal if presented at trial.

A defendant alleging perjury as newly discovered evidence must demonstrate that the witness provided intentionally false testimony regarding a material matter, as outlined in 18 U.S.C. §§ 1621 and 1623. If the government was unaware of the perjury during the trial, a new trial is warranted only if the false testimony was material and there is a strong belief that it likely affected the conviction. Conversely, if the prosecution knew or should have known about the perjury, a new trial is justified if there is a reasonable likelihood that the false testimony influenced the jury's decision. In the case at hand, the defendants failed to show that the prosecution was aware of Agent Williams's alleged perjury, and there exists substantial evidence of their guilt independent of his testimony. Therefore, the district court did not err in denying their motion for a new trial.

Additionally, defendant Ajaj claims ineffective assistance of counsel for not requesting a jury instruction on withdrawal from a conspiracy after his incarceration. However, the trial counsel testified that pursuing such an instruction was inconsistent with Ajaj's defense that he was never part of the conspiracy. Ajaj contends that the counsel should have offered an alternative argument regarding his potential withdrawal. To prove ineffective assistance, a defendant must show that counsel's performance was below professional standards and that this deficiency caused prejudice, as established in Strickland v. Washington.

Ajaj's prior appeal acknowledged that he could have requested a withdrawal from the conspiracy instruction, but he cannot claim ineffective assistance of counsel simply due to dissatisfaction with the strategy employed. Judicial review does not extend to second-guessing chosen strategies, especially when they are reasonable under the circumstances. In this case, Ajaj's counsel's decision not to request the withdrawal was justified given the substantial evidence showing Ajaj continued communication with co-conspirators, including Ramzi Yousef, even while incarcerated. Consequently, Ajaj cannot demonstrate prejudice from the lack of this request, as it is unlikely the jury would have believed he withdrew from the conspiracy during his imprisonment, given their verdict indicating his involvement at the time of his unlawful entry into the U.S. Therefore, the district court acted within its discretion by denying Ajaj’s motion for a new trial based on ineffective assistance of counsel. All other arguments presented by the defendants were deemed meritless, leading to the affirmation of the district court's decision to deny the post-trial motions for a new trial.