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United States V. Ramzi Ahmed Yousef

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United States V. Ramzi Ahmed Yousef UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2001 (Argued: May 3, 2002 Decided: April 4, 2003 Errata Filed: April 14, 2003 Errata Filed: June 18, 2003) Docket Nos. 98-1041 L 98-1197 98-1355 99-1544 99-1554 UNITED STATES OF AMERICA, Appellee, v. RAMZI AHMED YOUSEF,EYAD ISMOIL, also known as EYAD ISMAIL, and ABDUL HAKIM MURAD, also known as SAEED AHMED, Defendants-Appellants, MOHAMMED A. SALAMEH,NIDAL AYYAD,MAHMUD ABOUHALIMA, also known as Mahmoud Abu Halima, BILAL ALKAISI, also known as Bilal Elqisi, AHMAD MOHAMMAD AJAJ, also know as Khurram Khan, ABDUL RAHMAN YASIN, also know as Aboud, and WALI KHAN AMIN SHAH, also known as Grabi Ibrahim Hahsen, Defendants. Before: WALKER, Chief Judge,WINTER,CABRANES, Circuit Judges. Appeal by Ramzi Yousef, Eyad Ismoil, and Abdul Hakim Murad from judgments of conviction entered in the United States District Court for the Southern District of New York (Kevin Thomas Duffy, Judge) on April 13, June 2, and June 15, 1998, respectively. Judge Duffy presided over two separate jury trials. In the first trial, Yousef, Murad, and another defendant were tried on charges relating to a conspiracy to bomb twelve United States commercial airliners in Southeast Asia. In the second trial, Yousef and Ismoil were tried for their involvement in the February 1993 bombing of the World Trade Center in New York City. Yousef, Ismoil, and Murad now appeal from their convictions, raising numerous questions of domestic and international law. Yousef and Ismoil also appeal from the District Court’s denial of several of their post-judgment motions. Apart from a modification of Ismoil’s judgment with respect to the requirements of restitution, the judgments of conviction are affirmed in all respects. DAVID N. KELLEY and MICHAEL J. GARCIA, Assistant United States Attorneys (Mary Jo White, United States Attorney, on the brief, David Raskin, Adam B. Siegel, Jennifer G. Rodgers, James J. Benjamin, Jr., Baruch Weiss, Jamie L. Kogan, Christine H. Chung, Ira M. Feinberg, Assistant United States Attorneys, of counsel), United States Attorney’s Office for the Southern District of New York, New York, NY, for Appellee United States of America. BERNARD V. KLEINMAN, White Plains, NY, and STEVEN Z. LEGON, New York, NY, for Defendant-Appellant Ramzi Ahmed Yousef. LOUIS R. AIDALA (Joan Palermo, on the brief), New York, NY, for Defendant-Appellant Eyad Ismoil. JERRY L. TRITZ (Amy J. Porter, on the brief), Law Office of Jerry L. Tritz, New York, NY, for Defendant-Appellant Abdul Hakim Murad. -2- TABLE OF CONTENTS INTRODUCTION .............................................................. 7 GENERAL BACKGROUND ..................................................... 8 I. World Trade Center Bombing .................................... 8 II. Airline Bombing .............................................. 10 AIRLINE BOMBING CASE .................................................... 13 BACKGROUND ............................................................ 13 I. Preparation for Airline Bombing Conspiracy ....................... 13 II. Discovery of Airline Bombing Plot ............................... 14 III. Arrests of Shah, Yousef, and Murad .............................. 16 DISCUSSION .............................................................. 22 I. Assertion of Extraterritorial Jurisdiction Over Defendants Yousef and Murad .............................. 22 A. Jurisdiction to Prosecute Defendants’ Extraterritorial Conduct Under Federal Law ................. 23 1. Applicable Law .................................. 23 2. Counts Thirteen and Fourteen ...................... 24 3. Count Twelve ................................... 26 4. Count Nineteen .................................. 27 B. Exercise of United States Extraterritorial Jurisdiction and Customary International Law ................ 32 1. Bases of Jurisdiction over the Counts Charged ......... 34 a. Relationship between Domestic and International Law in Yousef’s Prosecution ..... 34 b. Treaty-Based Jurisdiction: The Hague and Montreal Conventions ............. 38 2. Jurisdiction over Counts Twelve through Eighteen ..... 42 3. Jurisdiction over Count Nineteen .................... 43 a. The District Court’s Holding and Yousef’s Challenges on Appeal ............... 43 i. The District Court’s Opinion .......... 45 ii. The Use of Authority in Determining Customary International Law .......... 47 iii. The Universality Principle Provides for Jurisdiction over Only a Limited Set of Acts Violating -3- the Law of Nations .................. 53 b. Jurisdiction Is Proper Under United States Laws Giving Effect to Its Obligations Under the Montreal Convention .............. 60 c. In Any Event, Jurisdiction Over Count Nineteen Is Proper under the Protective Principle of Customary International Law ...... 64 C. Due Process Claims ..................................... 66 1. Due Process Nexus ............................... 66 2. Due Process in Conduct of Trial .................... 67 D. Venue in Southern District of New York .................... 72 E. Doctrine of Specialty .................................... 73 II. Conviction of Yousef Under 18 U.S.C. § 2332 ...................... 74 A. Prosecutorial Discretion Under Section 2332(d) .............. 75 B. Failure to Charge Jury on Intent to Retaliate ................. 77 III. District Court Failure to Sua Sponte Voir Dire the Jury Mid-Trial Regarding the Pope and the Roman Catholic Church ........ 79 IV. Liberation Army Letter ......................................... 82 A. Admission of Liberation Army Letter ....................... 85 B. Failure to Redact Liberation Army Letter .................... 86 V. District Court Denial of Murad’s Motion to Suppress His Post-Arrest Statement ............................ 87 A. District Court Decision .................................. 88 B. Standard of Review ..................................... 90 C. Murad’s Alleged Request for a Lawyer ...................... 91 D. Voluntariness of Confession .............................. 93 1. FBI Coercion .................................... 93 2. Hegarty’s Testimony .............................. 94 3. Murad’s Allegations of Torture by Philippine Officials ...................... 95 4. United States Government’s Lack of Knowledge Regarding Philippine Mistreatment ........ 96 E. Harmless Error ......................................... 97 VI. Murad’s Sixth Amendment Right to Present a Defense ............... 98 A. Applicable Law ......................................... 98 B. Reports by Amnesty International and the United States Department of State Regarding Abusive Treatment by Philippine Police ..................... 99 C. Discovery from the Philippines ........................... 100 D. Jury Charge on Voluntariness ............................ 102 VII. “Bully” Charge on Circumstantial Evidence of Intent ............... 104 VIII. Sufficiency of the Evidence on Yousef’s Attempt Convictions ........ 108 WORLD TRADE CENTER CASE .............................................. 111 -4- BACKGROUND ........................................................... 111 I. Indictment and Apprehension of Yousef and Ismoil ................ 111 II. The World Trade Center Bombing Trial .......................... 112 DISCUSSION ............................................................. 115 I. Yousef’s Pre-Trial Motions .................................... 116 A. Motion to Dismiss the Indictment ........................ 116 B. Motion to Suppress .................................... 120 1. Attachment of Sixth Amendment Right to Counsel Upon Indictment for the World Trade Center Bombing ..................... 121 2. Invocation of Right to Counsel .................... 123 3. Sixth Amendment Rights Based on Assignment of Asylum Counsel .................... 126 4. Purported Due Process Requirement of Appointment of Counsel ....................... 128 5. Voluntariness of Yousef’s Post-Arrest Statements ..... 128 II. Ismoil’s Motion to Suppress His Statement to Jordanian Authorities .............................. 129 III. The Daubert Hearing .......................................... 135 IV. Yousef’s Motion to Sever ...................................... 138 V. The Admission of Ismoil’s Redacted Statement .................... 144 VI. Yousef’s Motion for a Change of Venue .......................... 150 VII. Exclusion of Evidence of Government’s Inconsistent Theories ....... 151 VIII. Admission of Government’s Fingerprint Evidence and Telephone Call Charts ............................. 154 IX. Jury Instructions Concerning Ismoil’s Knowledge .................. 156 X. Jury Instruction on “Aiding and Abetting” ........................ 160 XI. Failure to Dismiss the Alternate Jurors ........................... 160 XII. Cumulative Violation of Right to Fair Trial ....................... 162 SENTENCING ISSUES ....................................................... 162 I. Ex Post Facto Claim ........................................... 163 II. Length of Sentences .......................................... 164 III. Fines and Restitution ......................................... 168 IV. Special Conditions of Confinement .............................. 170 POST JUDGMENT ISSUES .................................................... 171 I. “Scarpa Materials” ........................................... 171 -5- II. Recusal ..................................................... 177 CONCLUSION ............................................................... 180 I. Airline Bombing Case ........................................
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