United States v. Mohammed A. Salameh, Nidal Ayyad, Mahmoud Abouhalima, Also Known as Mahmoud Abu Halima, and Ahmad Mohammad Ajaj, Also Known as Khurram Kham

Citations: 84 F.3d 47; 1996 U.S. App. LEXIS 10829Docket: 94-1312

Court: Court of Appeals for the Second Circuit; May 9, 1996; Federal Appellate Court

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The United States Court of Appeals for the Second Circuit is considering a motion to reinstate appeals from four defendants—Mohammed A. Salameh, Nidal Ayyad, Mahmoud Abouhalima, and Ahmad Mohammad Ajaj—who were convicted related to the April 26, 1993, bombing of the World Trade Center. Following their jury convictions, the defendants were sentenced on May 24, 1994, and subsequently filed notices of appeal. On June 23, 1995, Abouhalima and Ajaj requested a remand to the District Court to present motions to vacate their convictions. Initially divided on remand appropriateness, all four defendants ultimately sought remand, leading the Court to issue a "Remand Order" on July 18, 1995.

Subsequent proceedings in the District Court included Ajaj's request for more time to finalize his motion, and on July 26, 1995, Judge Duffy denied motions based on alleged newly discovered evidence. A hearing was scheduled for August 7, 1995, regarding claims of ineffective assistance of trial counsel, with trial counsel expected to testify, waiving the attorney-client privilege for relevant communications. Abouhalima and Ajaj then filed writs of mandamus in the appellate court, which were denied on August 9, 1995. This denial included provisions allowing for renewal if the District Court did not receive the government’s written responses to the remanded motions, conduct necessary evidentiary hearings, and specifically rule on each issue raised in those motions.

On October 16, 1995, Ajaj submitted a final motion challenging his conviction in the District Court. Following this, the Government responded on November 16, and on November 17, Judge Duffy held a conference where he noted the case was returned from the Court of Appeals without instructions. He described the Court's Denial of Mandamus Order as effectively a mandamus, indicating it included conditional circumstances for the defendants to renew their petitions. Judge Duffy identified two main issues in the defendants' motions for a new trial: newly discovered evidence and ineffective assistance of counsel. He expressed skepticism about the novelty of the newly discovered evidence but implied he had not reached a final decision on it. Regarding the ineffective assistance claim, he warned that discussing it could prejudice the jury pool for other upcoming trials related to the World Trade Center bombing. Consequently, he offered the defendants the choice to proceed with their claims at a scheduled hearing on December 4, 1995, or to delay for at least a year. On April 16, 1996, the four defendants jointly filed a motion to reinstate their appeals or to reassign their District Court motions to a different judge. The remand order allowed the District Court discretion in handling the case, permitting it to consider any collateral attacks the defendants wished to present without imposing a specific procedural mandate. The Denial of Mandamus Order was clarified as not being a mandamus order, as the petitions for mandamus were denied rather than granted.

The Denial of Mandamus Order did not issue a writ of mandamus but included language indicating the conditions under which a party may reapply for a writ. This language is often used when there has been significant delay in judicial action. Instead of choosing between immediate action or a silent denial, appellate courts may deny the mandamus petition "without prejudice to renewal" if the district court does not decide the matter within a specified time, typically 60 or 90 days. This language suggests a preference for action but does not compel it. If the district court fails to act, the petitioner can return to the appellate court for a full consideration of issuing a writ.

In the current case, the parties who were denied the writ chose not to renew their application but sought to reinstate their appeals instead, facing a jurisdictional objection from the Government. This objection hinges on the precedent set in United States v. Jacobson, which modified previous practices regarding jurisdiction during pending appeals and clarified the process for restoring appellate jurisdiction after remand. Jacobson established that the appellate court could direct actions in the district court and issue a mandate that specifies the conditions for restoring jurisdiction, eliminating uncertainty about the district court's ability to act while the appellate court retains jurisdiction.

The Government's assertion that the appellate court lacks jurisdiction to consider the motion to reinstate appellate jurisdiction is incorrect. It misinterprets the exclusivity of conditions specified in a mandate for restoring jurisdiction. The appellate court always retains the authority to restore jurisdiction over a remanded case, a power that has been consistently exercised in similar cases, including recalling mandates in remanded cases.

The Jacobson procedure does not prevent the Court from regaining appellate jurisdiction when circumstances change, allowing for a reassessment of previous mandates. Although the Government asserts that jurisdiction follows the mandate and that the case is removed from the Court’s jurisdiction, the Court can restore jurisdiction by recalling the mandate. The criteria for restoring jurisdiction under the Jacobson procedure are not exhaustive, as doing so would permanently relinquish the Court's appellate authority. 

In evaluating the pending motion, the Court finds that current conditions in the District Court warrant the restoration of appellate jurisdiction. Delays in addressing the defendants' collateral challenges were not anticipated during the Remand Order and stemmed from complications in processing motions and potential risks identified by Judge Duffy regarding simultaneous hearings with related cases. The Court does not need to determine the legitimacy of these delays; it only acknowledges that the present circumstances justify the defendants' preference to resume their appeals rather than wait for resolution of their collateral attacks.

The Government's concern that reinstating appeals might allow parties to bypass trial court considerations is unfounded, as the Court retains discretion to differentiate between legitimate requests and tactical delays. Additionally, the Government worries that reinstating appeals could introduce new, unresolved matters into the record. However, the Court believes these issues can be effectively managed by the merits panel assigned to the appeals. The reinstatement applies solely to the appeals from the four judgments of conviction for which notices of appeal had been previously filed. The panel assigned will have the authority to consider whether to exercise appellate jurisdiction over any new matters arising after the convictions.

The motion to reinstate the appeals of four defendants has been granted, restoring appellate jurisdiction and preventing the District Court from altering the judgments. The court specifies that if an appeal is pending, a motion for a new trial can only be granted upon remand. Defendants Abouhalima, Ayyad, and Salameh are given 60 days to submit supplemental briefs, while Ajaj must file his brief within the same timeframe. The Government will have four months from the expiration of the 60-day period to file its brief, and defendants will have 30 days for reply briefs. The appeals may be argued starting the week of December 15, 1996. The court does not endorse the defendants' characterizations of the District Court proceedings and denies the request to reassign pending motions to a different judge, indicating a limited restoration of jurisdiction in the District Court. The court retains the authority to deny motions to alter the judgments, referencing United States v. Cronic, and does not express an opinion on any relief requests related to collateral attacks on the judgments.