Opinion
S4 00 Cr. 15 (JFK)
September 28, 2001
MARY JO WHITE, United States Attorney for the Southern District of New York, Of Counsel: Robin L. Baker, Joseph F. Bianco, Assistant United States Attorneys New York, New York, For the United States of America.
Daniel J. Ollen, Esq., New York, New York, For the Defendant.
OPINION and ORDER
Background
On July 13, 2001, defendant was convicted by a jury of conspiracy to provide material support to a terrorist act. 18 U.S.C. § 371 (Count One). He was also convicted on four counts (Counts Three, Four, Five and Six) of various fraud schemes. 18 U.S.C. § 371, 1028(2) and (7), 1029(a)(2). On Count Two, which charged the defendant with providing material support to a terrorist act, 18 U.S.C. § 2339A and 2 defendant was acquitted. He now moves pursuant to Federal Rules of Criminal Procedure ("F.R.C.P.") 29 and 33 for a judgment of acquittal as to all counts, or alternatively, for a new trial.
The main Government evidence was supplied by two conspirators, Ahmed Ressam and Abdelghani Meskini. Ressam was convicted by jury in the Central District of California in connection with his efforts to blow up the Los Angeles Airport in December, 1999 at the end of the last millennium. Fortunately, he was arrested before he was able to commit that heinous deed. He had been trained in Afghanistan in terrorist tactics. After his conviction, on the eve of this trial, Ressam decided to cooperate and he testified against Haouari in these proceedings.
Meskini was originally a co-defendant of Haouari's. He pleaded guilty on March 7, 2001 and agreed to cooperate. He also testified against Haouari.
Both men await sentence.
Discussion
1. Applicable Legal Standards Under Rule 29
A defendant who challenges the sufficiency of the evidence under Rule 29 "bears a heavy burden." United States v. Desena, 260 F.3d 150, 154 (2d Cir. 2001); United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000). The jury's verdict must be upheld if "'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original); Desena, 260 F.3d at 154; United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999).
In considering the Government's proof for Rule 29 purposes, the Court must "resolve all issues of credibility in favor of the jury's verdict,"Desena, 260 F.3d at 154; see Guadagna, 183 F.3d at 129; and "view the evidence in the light most favorable to the government." Desena, 260 F.3d at 154; see Autuori, 212 F.3d at 114; Guadagna, 183 F.3d at 129. The Court must analyze the pieces of evidence "not in isolation but in conjunction," United States v. Matthews, 20 F.3d 538, 548 (2d Cir. 1994); Autuori, 212 F.3d at 114, and must apply the sufficiency test "to the totality of the government's case and not to each element, as each fact may gain color from others." Guadagna, 183 F.3d at 130; see also United States v. Monica, 295 F.2d 400, 401 (2d Cir. 1961). The Court must also "credit [ ] every inference that the jury might have drawn in favor of the government." United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998); Guadagna, 183 F.3d at 129; Desena, 260 F.3d at 154, because "the task of choosing among competing, permissible inferences is for the [jury], not for the reviewing court," United States v. McDermott, 245 F.3d 133, 137 (2d Cir. 2001).
The deference accorded to the jury's verdict "is especially important when reviewing a conviction of conspiracy . . . . because a conspiracy by its very nature is a secretive operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon's scalpel." United States v. Pitre, 960 F.2d 1112, 1121 (2d Cir. 1992) (internal quotation marks omitted); see also United States v. Amato, 15 F.3d 230, 235 (2d Cir. 1994). As with the other elements of a conspiracy, "a defendant's knowledge of the conspiracy and his participation in it with criminal intent may be established through circumstantial evidence." United States v. Gordon, 987 F.2d 902, 906-07 (2d Cir. 1993); see also United States v. Rosa, 17 F.3d 1531, 1543 (2d Cir. 1994) ("Circumstantial evidence may be sufficient to prove conspiratorial intent . . . or a particular defendant's knowing participation in the conspiracy.").
The evidence at trial was amply sufficient to sustain Haouari's convictions on Count One and Counts Three through Six.
As to Count One, Haouari argues that "the evidence at trial failed to demonstrate beyond a reasonable doubt the requisite knowledge on [his] part." (Ollen Aff. ¶ 15). The Court gave the jury a conscious avoidance instruction regarding Count One (Tr. 1034-36), and there was sufficient proof from which the jury reasonably could have inferred that Haouari "deliberately closed his eyes" (Tr. 1034) to the fact that Ressam intended to destroy property in the United States by explosion or fire. Inter alia Ressam testified that:
(1) Ressam told Haouari that the training Ressam received in Afghanistan included explosives training. (Tr. 565).
(2) When Ressam and Haouari in October 1999 discussed a past operation in France in which metro stations were bombed, Ressam said that it would be good to do another such operation and Haouari agreed. (Tr. 589-90, 704).
(3) Ressam and Haouari discussed the bombings of the U.S. embassies in Africa and Ressam thought that the bombings were a good thing but would have been better if done inside the United States. Haouari agreed. (Tr. 590-91, 678).
(4) Haouari told Ressam that Haouari had a friend in the United States who could help Ressam. Ressam said, "Mokhtar, I'm not going to America for tourism. I am going on some very important and dangerous business." (Tr. 5771 706). The friend was Meskini.
(5) Haouari later confirmed to Ressam that Meskini was willing to help Ressam. Ressam asked if Haouari "explain[ed] to him well the business," and Haouari replied that he told Meskini that "it is a business that has shteah." This is an Algerian word used to describe something that involves fear and danger. (Tr. 579, 706).
(6) Ressam asked Haouari to provide him with a fake Algerian passport and said, "After I'm through with America, I'm going to go back to Algeria." (Tr. 583).
(7) Before he left Montreal for the last time, Ressam told Haouari and a co-conspirator in the frauds, one Samir Ait Mohamed, that he (Ressam) would open a store for them (in Ressam's false identity, for them to commit credit card fraud), but that they would "bear responsibilities should [Ressam] have any problems in the future," Ressam said if anyone were to ask them about him, they should deny any knowledge or say that he was Lebanese. (Tr. 600-01).
Besides the Ressam testimony, Mr. Meskini testified that, after Meskini agreed to assist Ressam, Meskini had a telephone conversation with Haouari and another fraud co-conspirator, Said Araar. Haouari told Meskini in this conversation that Ressam said that Meskini "would have a great blessing," and then Haouari told Araar, who had taken the phone to speak to Meskini, "Tell him the fire is on and it's coming." (Tr. 332-335). Meskini explained that those statements, and other facts and circumstances relating to Haouari's request for Meskini to assist Ressam whom Meskini did not know, caused Meskini to conclude that Ressam was coming to the United States to commit a violent act. (Tr. 336-337).
The testimony of the two co-conspirators justifies the jury's conclusion that Haouari either knew or consciously avoided learning Ressam's specific plan, and that Haouari therefore acted with the requisite knowledge when he became a member of the conspiracy charged in Count One to provide material support to a terrorist act.
Regarding the identification fraud charged in Count Three (as an object of the fraud conspiracy) and Counts Four and Five, Meskini testified that several times from late 1997 through late 1999, Haouari supplied, or agreed to supply, Meskini and others with fake Canadian driver's licenses and fake Canadian passports and citizenship cards. (Tr. 172-75, 179-81, 187, 194, 200-01, 211-13, 219-20, 223, 228, 238, 246, 256, 257, 312, 313-14).
Meskini used some of the fake identification to commit bank fraud (Tr. 177, 187, 192, 194, 261-62) and some to commit credit card fraud. (Tr. 232-34, 240). Ressam testified that he gave Haouari a fake Canadian passport that he (Ressam) no longer wanted (Tr. 541), and that Haouari gave Ressam a fake Canadian driver's license which was in Ressam's possession at the time of his arrest. (Tr. 582, 583, 591, 595, 617, 618; GX 56).
There were also two phony Canadian driver's licenses (GX 56, 109, 140, 144), bank records (GX 183A and B), a fake Canadian citizenship card (GX 158) and a phony Canadian passport (GX 274) which corroborated the cooperators' testimony.
Concerning Count Three (as an object of the fraud conspiracy) and Count Six, Meskini testified that several times in 1999, Haouari (and, once his associate, Brahim) sent Meskini packages of counterfeit credit cards to be used by Meskini and his associates. (Tr. 236-40, 252, 254-59, 264-65, 359-60). One of these packages was intercepted by the United States Customs Service. (Tr. 244-46). Haouari also sent Meskini a stolen credit card, which Meskini used. (Tr. 251-52, 260; GX 130, 145). Twice Haouari sent Meskini a device to read and store information from the magnetic strips of credit cards so that Meskini could obtain credit card information to be used by Haouari and his associates to make counterfeit credit cards. (Tr. 238-43, 259-61, 332-35). Haouari once told Meskini that Haouari wanted to buy a gas station in New York to be used as a source of credit card information. (Tr. 243-44)
Ressam testified that in about October 1999, he saw Haouari send a package of counterfeit credit cards by Federal Express to someone in the United States. (Tr. 562-63). Ressam also testified he saw Haouari making counterfeit credit cards using a computer and a small device through which he swiped the cards. (Tr. 563). Further, at the request of Haouari and his associates (Said Araar and Samir Ait Mohamed), Ressam agreed to use his false identity to open a store in Canada to be used as a source of credit card information. (Tr. 562, 563-64).
There was ample other corroborating evidence found in Meskini's apartment 3L at 944 Newkirk Avenue in Brooklyn, New York.
Also there was surveillance testimony that Haouari went to Araar's residence on January 7, 2000 (Tr. 785-89) and telephone records showed many telephone calls between Haouari and Araar, as well as two calls between Meskini and Araar. (GX 411, 411-A; Tr. 761-62). Other telephone records corroborate Meskini.
With respect to the bank fraud object of the Count Three conspiracy, Meskini testified that Haouari gave him counterfeit business checks, which Meskini deposited into bank accounts in other names. (Tr. 193-95, 209-11; see also Tr. 156-59). His testimony was corroborated by Ressam's testimony that Haouari said that he used to open accounts, deposit stolen checks and then withdraw the money. (Tr. 539-40). There were bank records showing Meskini's deposits of counterfeit business checks into accounts in several other names. (GX 182, 182-A, 288, 288-A, 289, 289-A, 290, 290-A, 291, 291-A).
There were also two ATM receipts, found in Haouari's Montreal apartment, each reflecting a deposit of a counterfeit business check into a bank account in another name. (GX 388, 389, 390, 391, 391-T, 393, 393-T).
Haouari's Rule 29 motion fails.
2. Applicable Legal Standards Under Rule 33
Under Rule 33, the court "may grant a new trial to [a] defendant if the interests of justice so require." Fed.R.Crim.P. 33. Although "the trial court has broader discretion to grant a new trial under Rule 33 than to grant a motion for acquittal under Rule 29," such discretion is to be exercised "'sparingly'" only in "'the most extraordinary circumstances.'" United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001) (quoting United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992)), pet. for rehearing filed, No. 99-1262(L) (May 11, 2001). "The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice." Ferguson, 246 F.3d at 134 (citingSanchez, 969 F.2d at 1414).
In making this assessment, the judge must examine the totality of the case. All the facts and circumstances must be taken into account. An objective evaluation is required. There must be a real concern that an innocent person may have been convicted. It is only when it appears that an injustice has been done that there is a need for a new trial "in the interest of justice."Sanchez, 969 F.2d at 1414 (footnote omitted).
There is no "real concern" here that Mr. Haouari is innocent and no "injustice has been done."
Haouari's Rule 33 argument really repeats his summation argument that the testimony of Meskini and Ressam is incredible. (Ollen Aff. ¶¶ 17-23; Tr. 928-62). The credibility of the witnesses and their testimony was demonstrated at trial by the extent to which the witnesses corroborated each other, and the extent to which their testimony was corroborated by other evidence in the case including a December 22, 1999 intercepted call between Meskini and Haouari (GX l00-T) and the evidence referred to at p. 5-10 supra.
There are no "exceptional circumstances," Ferguson, 246 F.3d at 133-34 (quoting Sanchez, 969 F.2d at 1414), to warrant my intrusion into the jury's province of credibility assessment or to disturb this verdict in any way.
The defendant's motion for a judgment of acquittal or a new trial is denied.
SO ORDERED.