United States v. Bin Laden

Citations: 116 F. Supp. 2d 489; 2000 U.S. Dist. LEXIS 14507Docket: No. S(7) 98 CR.1023(LBS)

Court: District Court, S.D. New York; October 5, 2000; Federal District Court

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Defendants are charged with offenses linked to their alleged roles in an international terrorist organization led by Usama Bin Laden, particularly regarding the August 1998 bombings of U.S. embassies in Nairobi and Dar es Salaam. Defendant El-Hage has filed motions to quash grand jury subpoenas issued to several individuals and to suppress or obtain a copy of grand jury testimony from Moataz al-Hallak. The Court denies these motions. The case involves allegations of the defendants' involvement with al Qaeda, which has been implicated in numerous attacks against U.S. targets since its formation in 1989. The government's investigation, ongoing since at least 1996, is extensive and involves unidentified conspirators. El-Hage argues that the government is misusing the grand jury for trial preparation and to deter witnesses from testifying favorably. The Court notes that it is improper to use a grand jury solely for preparing a case for trial, but emphasizes that defendants bear the burden of proving improper motivation behind grand jury actions, as there is a presumption of regularity in such proceedings.

A presumption exists that a post-indictment subpoena serves a proper purpose, with the government’s assertion of legitimacy taken at face value unless clear irregularities are demonstrated. The Second Circuit has rarely quashed grand jury subpoenas, with the case of Siméis being notable. In Siméis, the court quashed a subpoena to the defendant's attorney for fee arrangements, concluding that the timing indicated trial preparation was the primary motive, given the grand jury's inactivity. In contrast, less compelling circumstantial evidence has not been sufficient to prove improper government conduct in other cases. For instance, in Leung, the court upheld the subpoena for bank records, rejecting the defendant's claim that it was intended for trial preparation rather than an ongoing investigation into money laundering, emphasizing that a lack of subsequent indictments did not imply impropriety. Similarly, in Vanwort and Jones, the courts found valid government purposes for post-indictment subpoenas aimed at expanding indictments or investigating additional individuals involved in criminal activities. The Sasso case also reinforced that if a subpoena has a legitimate dominant purpose, the government can use the evidence obtained. The defendant in the current matter argues the timing of the subpoenas raises suspicions and that the witnesses involved have no ties to the alleged conspiracy, asserting their testimonies are only relevant to the current indictment and trial.

Mr. El-Hage's connection to potential grand jury witnesses suggests their testimony could aid the government in trial preparation; however, a grand jury subpoena can only be quashed if its primary purpose is trial preparation. The court cites Leung, noting that Mr. El-Hage's claims about the government's motives do not overcome the presumption of regularity, especially given the context of an extensive investigation into al Qaeda. Unlike in Siméis, where prosecutorial misconduct was evident, the government's justification for the subpoenas is plausible. Consequently, Mr. El-Hage's motion to quash the subpoenas is denied.

Additionally, Mr. El-Hage alleges prosecutorial intimidation of defense witnesses, which is a serious charge as defendants possess a constitutional right to present a defense. Citing Washington v. Texas, this right is fundamental to due process. The court references past cases, particularly United States v. Vavages, where prosecutorial actions led to a witness's refusal to testify, resulting in a reversal of conviction. The Vavages court established that a defendant must show prosecutorial interference through coercive actions that significantly impact a witness's choice to testify. This principle is supported by Webb v. Texas, which deemed excessive warnings about perjury during a witness's testimony as improper. The Vavages decision extends this concept to prosecutorial conduct, recognizing the inherent power imbalance. The Second Circuit's ruling in United States v. Williams further clarifies that intimidation by judicial or prosecutorial figures can infringe on the right to present a defense under certain circumstances.

The court emphasized that the right to present a defense is limited by public interests, such as preventing perjury and investigating prior criminal activities. A defendant claiming a violation of this right must demonstrate deprivation of material and exculpatory evidence that could not be obtained through other means, along with evidence of bad faith by the Government. To establish a due process violation, the defendant must show that the lack of fairness compromised the trial. In this case, Mr. El-Hage's claims are speculative and do not meet the stringent standards outlined, as he fails to prove he has been deprived of witness testimony and merely speculates on potential witnesses invoking their Fifth Amendment rights due to fear of government reprisals. His allegations of bad faith against the Government lack supporting evidence, reinforcing the notion that mere suspicion is insufficient. Consequently, the court denies El-Hage’s motions without prejudice to renewal. The ruling notes a prior case where government actions warranted scrutiny, leading to an examination of grand jury transcripts, but emphasizes that such interference is not justified at this stage. The court will later ensure proper grounds for any witness's invocation of the Fifth Amendment but finds no basis for the defendant's claims in the current context.