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denying Saleh's initial Section 2255 petition
Summary of this case from United States v. SalehOpinion
S5 S7 93 Cr. 181 (MBM) 01 Civ. 162, '169, "175," 176, 222, 596, 1988; 00 Civ. 7981
October 21, 2003
JAMES B. COMEY, ESQ., ANDREW c. MCCARTHY, ESQ., New York, NY, for the Southern District of New York
POLLY N. PASSONNEAU, ESQ., New York, NY, for Ibrahim A. Elgabrowny
MICHAEL H. SPORN, ESQ., New York, NY, for Amir Abdelgani
JOHN BURKE, ESQ., Brooklyn NY, for Mohammed A. Saleh
MARJORIE M. SMITH, ESQ., Englander Smith, Tappan, NY, for Victor Alvarez
CLEMENT HAMPTON-EL, Terre Haute, IN, for Petitioner
MOHAMMED ABOUHALIMA, Schuylkill, PA, for Petitioner
MOIRA E. CASEY, ESQ., Douglaston, NY, for Fadil Abdelgani
TARIG ELHASSAN, Beaumont, TX, for Petitioner
FARES KHALLAFALLA, Beaumont, TX, for Petitioner
OPINION AND ORDER
Nine men who were initially indicted together in August 1993 in indictment S3 93 Cr. 181, charged with various terrorism-related offenses as set forth below, and convicted after jury trials in 1995 and 1997, and whose convictions have been affirmed on direct appeal, have petitioned pursuant to 28 U.S.C. § 2255 to set aside the judgments of conviction entered against them and the sentences imposed upon them. They have argued principally, but not exclusively, that their sentences were imposed in violation of principles set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000), and that their lawyers failed to provide effective assistance at trial, in connection with sentence, and on appeal.
Although Apprendi would be of no help to these petitioners in any event, our Court of Appeals has held that that case does not apply retroactively to petitions such as this. See Coleman v. United States, 329 F.3d 77 (2d Cir. 2003). Further, and for the reasons set forth below, each of these petitioners received able and diligent representation, and the petitions otherwise lack merit. Accordingly, the requested relief is denied and the petitions are dismissed.
This case has been the subject of numerous opinions of this court and one reported opinion of the Court of Appeals. General familiarity with those opinions and with the background of this case is assumed for purposes of this opinion, and facts are set forth herein only to the extent necessary to treat particular issues raised by these petitioners.
I.
The nine petitioners are Ibrahim A. Elgabrowny, Amir Abdelgani, Mohammed A. Saleh, Victor Alvarez, Clement Hampton-El, Mohammed Abouhalima, Fadil Abdelgani, Tarig Elhassan and Fares Khallafalla. As noted above, all were indicted together, and with others, in August 1993, and charged with crimes that included (i) conspiring from the late 1980's until 1993 to levy a war of urban terrorism against the United States, in violation of 18 U.S.C. § 2384; (ii) conspiring during the same period to carry out bombings, in violation of 18 U.S.C. § 371 and 844; and (iii) attempting in the Spring of 1993 to bomb several New York City landmarks, including the Holland and Lincoln Tunnels, the United Nations, and the office building at 26 Federal Plaza that houses the Federal Bureau of Investigation, among other agencies.
All except Mohammed Abouhalima were tried together, along with codefendants Omar Ahmed Ali Abdel Rahman, El Sayyid Nosair, Siddig Ibrahim Siddig Ali, and Wahid Saleh, under indictment S5 93 Cr. 181, in a trial that began in January 1995. That trial ended in October 1995 with the conviction of all defendants who went to verdict; Siddig Ali and Wahid Saleh pleaded guilty before that trial ended. In January 1996, the petitioning defendants who were tried in that case were sentenced as follows: Elgabrowny, 57 years; Alvarez, Elhassan, Hampton-El and Mohammed Saleh, 35 years; Khallafalla and Amir Abdelgani, 30 years; Fadil Abdelgani, 25 years. Because there was no sentencing guideline directly applicable to seditious conspiracy in violation of 18 U.S.C. § 2384, Section 2X5.1, U.S.S.G., called for application of "the most analogous guideline," which I found to be the guideline applicable to treason, § 2M1.1, U.S.S.G. That guideline carried an offense level of 43, without adjustments, which provided for life imprisonment, a longer term than the 20-year maximum under the seditious conspiracy statute. However, these defendants were convicted of crimes other than seditious conspiracy. Under § 5G1.2(d), U.S.S.G., "[i]f the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment" prescribed by the guidelines level, the sentencing judge is directed to run the sentences on one or more other counts of conviction "consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment." After making appropriate adjustments that brought the offense level below 43 for defendants other than Abdel Rahman and Nosair, that is what I did.
Nosair and Elgabrowny were acquitted of bombing conspiracy charges, but all defendants otherwise were convicted of all charges submitted to the jury for decision.
The convictions were affirmed on appeal, see United States v. Abdel Rahman, 189 F.3d 88, cert. denied, 582 U.S. 982 (1999), as were the sentences of all except Elgabrowny, whose case was remanded for resentencing principally because I had intimated at the time he was sentenced that if a ground for downward departure had existed, I would have imposed a lesser sentence. The Court of Appeals found that such a ground might exist because the stacking of sentences above the statutory maximums for the counts of conviction, to reach the level prescribed by the Sentencing Guidelines, although legally permissible, created an opportunity for prosecutors to control the sentence through their charging decisions, and thus might have created a circumstance not anticipated by those who drafted the Sentencing Guidelines. The Court took care to avoid a holding that such stacking necessarily created such a circumstance, but remanded for a determination as to whether it did in Elgabrowny's case.See id., 189 F.3d at 156-58. In addition, the Court directed that I make specific findings about Elgabrowny's participation in the 1993 bombing of the World Trade Center that accounted for my unwillingness to grant him an inchoate offense adjustment. Id. at 159.
Although Elgabrowny had argued on appeal that his trial counsel was ineffective, a contention accurately and sharply rejected with a finding that counsel's representation had been "exemplary," id. at 144, he chose wisely on remand to be represented at resentencing by the same lawyer who had so ably represented him at trial, Anthony Ricco.
In connection with the resentencing, Elgabrowny argued not only that he should receive a sentence of no more than 20 years, the maximum under the seditious conspiracy statute, 18 U.S.C. § 2384, but also that he should receive a new trial based on purported failure by the government to disclose alleged materially exculpatory information not known to the defense during trial, in violation of Brady v. Maryland, 373 U.S. 83 (1963) and United States v. Agurs, 427 U.S. 97, 103 (1976). The allegedBrady material was said to be contained in FBI reports of interviews with Ramzi Yousef, a coconspirator, who was apprehended abroad and returned to the United States during the trial in this case. Those statements then were disclosed in redacted form to the defendants during trial, when Yousef himself was made available to the defendants for interview — an opportunity Yousef declined, choosing instead to exercise his Fifth Amendment right to silence. (See Tr. 13, 165-67, 13209-10, 14, 092-93). Yousef was convicted in 1997 of numerous terrorism charges, including planning of the 1993 World Trade Center bombing, under indictment S12 93 Cr. 180 (KTD). See, United States v. Yousef, 327 F.3d 56 (2d Cir. 2003). In addition, Elgabrowny argued that the court had improperly considered statements during a proffer by coconspirator Nidal Ayyad, who had been indicted and convicted after trial in 1994 in United States v. Salameh, 93 Cr. 180 (KTD). Before resentencing, the court found that Yousef's statements had no bearing on Elgabrowny's culpability, and that the court had been unaware of any statements by Ayyad at the time Elgabrowny's sentence was imposed. (4/10/00 Tr. at 4) Elgabrowny was resentenced principally to 33 years' imprisonment, a downward departure of 24 years. Elgabrowny appealed, relying solely on the Supreme Court's then-recent Apprendi decision, and not arguing the points he had argued upon resentence,i.e., the failure to grant him an inchoate offense adjustment and to depart downward sufficiently, and the failure to grant him a new trial based on an alleged Brady violation. On May 24, 2001, the Court of Appeals affirmed Elgabrowny's conviction and sentence by summary order; the Supreme Court denied certiorari on October 9, 2001. Elgabrowny v. United States, 534 U.S. 967 (2001).
Mohammed Abouhalima's case was severed, and he was tried separately in 1997, and convicted, on a superseding indictment charging him with acting as an accessory after the fact to the 1993 bombing of the World Trade Center. His brother, Mahmoud Abouhalima, was convicted as one of the perpetrators of that bombing, in United States v. Salameh, 93 Cr. 180. Mohammed Abouhalima's accessorial liability arose from his having driven his brother, Mahm6ud, to the airport so that he could flee after the 1993 bombing. Mahmoud eventually was apprehended in Egypt and returned to the United States to stand trial. Mohammed Abouhalima was sentenced in 1998 principally to eight years' imprisonment. His conviction was affirmed by summary order. United States v. Abouhalima, 201 F.3d 432 (Table) (2d Cir. 1999), cert. denied, 529 U.S. 1103 (2000).
II.
All petitioners except, for Abouhalima and Elgabrowny have argued that their sentences violate the rule set forth in Apprendi, decided in 2000, that it is unconstitutional for a defendant to be sentenced above the statutory maximum otherwise applicable, based on a finding of fact that is not made by a jury beyond a reasonable doubt. Elgabrowny made hisApprendi argument on direct appeal after the resentencing described above, and lost.
As noted above, Coleman, supra, holds directly that Apprendi may not be applied retroactively on collateral attack, as these petitioners seek to do. Further, even if Apprendi did so apply, the Court of Appeals held squarely in United States v. White, 240 F.3d 127, 135-36 (2d Cir. 2001), that imposing consecutive sentences in the fashion prescribed by § 5G1.2(d), as was done here, does not violate Apprendi.
Therefore, petitioners' Apprendi arguments are without merit.
III.
A brief discussion of what Brady material actually is and of the relevant history of this case, discloses that the Brady claims advanced by Elgabrowny and by Mohammed A. Saleh, whose claims are similar to Elgabrowny's, are deficient for numerous reasons. First, as noted at pages 5-6 above, Elgabrowny raised the claim that the government had withheld Brady material in Yousef's statements before his resentencing, but failed to pursue that claim on appeal, opting instead for an unsuccessful Apprendi argument. Saleh, too, failed to raise the point on appeal. It is a staple of § 2255 jurisprudence that a petition under that statute "may not do service for an appeal." United States v. Frady, 456 U.S. 153, 165 (1982). Therefore, a defendant who raises an issue for the first time in a § 2255 petition "must show both (1) 'cause' excusing his . . . procedural default [in having failed to raise the issue on direct appeal], and (2) 'actual prejudice' resulting from the errors of which he complains." Id. at 168. It follows, in turn, from those principles, that a defendant should not be permitted simply to stockpile issues for successive applications, as Elgabrowny did here by failing to raise his Brady claim on appeal even after his resentencing. Neither Elgabrowny nor Saleh has shown any cause external to himself for his failure, see Coleman v. Thompson, 501 U.S. 722, 753 (1991); Murray v. Carrier, 477 U.S. 478, 488 (1986), and, as appears below, cannot conceivably show prejudice. Therefore, this claim can and should be rejected on procedural grounds alone.
Further, a defendant who seeks relief after trial based on a claimedBrady violation must show (i) that the government suppressed evidence (ii) that such evidence was favorable to him, and (iii) that such evidence was material. As summarized by Judge Cabranes, writing for the Court of Appeals, those are the three components-of a Brady violation.See United States v. Coppa, 267 F.3d 132, 140 (2d Cir. 2001); see also, Strickler v. Greene, 527 U.S. 263, 280-81" (1999); Kyles v. Whitley, 514 U.S. 419, 436 (1995). Evidence favorable to a defendant means evidence that is "exculpatory." Strickler. 527 U.S. at 282. Elgabrowny brandishes the full text of FBI reports of interviews with Yousef that were turned over to him in redacted form during his trial, when Yousef was made available to him and his * — codefendants, but fails to point to anything that was redacted from those interviews that exculpates him. At most, both he and Saleh note that Yousef did not mention them as having been involved in the plot to bomb the World Trade Center in 1993.
However, there was nothing in the government's theory of Elgabrowny's participation in that or any other crime of which he was convicted that would have required Yousef to have met him or known of him. The government never alleged that Saleh was a member of the conspiracy at the time of the 1993 bombing. Rather, although Saleh was shown to have been a supporter of jihad activities (see, e.g., GX 329T at 18, 20-22, 34), and associated with Hamas before being solicited to join the conspiracy charged in the indictment (see, e.g., Tr. 5610-11, 6881), he was not shown to have joined the conspiracy until June 4, 1993 (see GX 333T at 25-26), well after the February 1993 World Trade Center bombing. Thus, Yousef's mere failure to mention Elgabrowny or Saleh is not exculpatory; it does not negate guilt, but merely does not further establish it.
Moreover, even if Yousef's failure to mention Elgabrowny or Saleh could be regarded as somehow exculpatory, it cannot have been material. In order for evidence to be material, it must suggest "'a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Strickler, 527 U.S. at 280, (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). "A 'reasonable probability' of a different result is . . . shown when the Government's evidentiary suppression 'undermines confidence in the outcome of the trial.'" Kyles, 514 U.S. at 435. As summarized below, there was an enormous array of evidence presented at trial showing that Elgabrowny in fact was heavily involved in the jihad organization that carried out the seditious conspiracy charged in the indictment, and in particular in the 1993 World Trade Center plot. There was also substantial evidence showing Saleh's involvement in the June 1993 plot to blow up bridges and tunnels.
Elgabrowny's cousin, El Sayyid Nosair, was convicted of assassinating Rabbi Meyer Kahane as part of the activities of the jihad organization; Elgabrowny had been in telephone contact with Nosair in the days before the Kahane assassination (GX 540 A-C), and served as the head of Nosair's defense committee during Nosair's state c6urt trial (Tr. 6153-64, 13829, 14131). As he sought to escape the scene after shooting Kahane, Nosair was blocked briefly by a 70-year-old man, Irving Franklin, whom he shot in the leg; Nosair later would state that he could have pulled off the Kahane murder with impunity if he had been carrying a stun gun. See Abdel Rahman, 189 F.3d at 105, 108 n. 6.
"GX" refers to a government exhibit at trial; "Tr." refers to a page of the trial transcript.
Elgabrowny solicited government informant Emad Salem to join the Jihad organization and introduced him to several of its members. (Tr. 4611-22, 4874-85) Elgabrowny discussed bombing and the need for high explosives with Salem on numerous occasions (Tr. 4712-13, 4740-41, 4889-4901, 6327-28, 6343-48, 6359, 6412-14), and introduced Salem to Nosair during the latter's trial as "a new member of the family." (Tr. 4713-15, 6094-95; GX 505A; see also, Abdel Rahman, 189 F.3d at 106) Following the trial, and continuing into June 1992, after which Salem lost contact with Elgabrowny and the other conspirators until after the 1993 World Trade Center bombing, Elgabrowny and others continued, with Nosair's urging, to plan and discuss bombings, including obtaining a safehouse and obtaining detonators. See Abdel Rahman, 189 F.3d at 106-07.
As the plan to bomb the World Trade Center in February 1993 took shape,
the builders [of the bomb] kept in close phone contact with El-Gabrowny and Abdel Rahman. [Mohammed] Salameh [convicted of participating in the 1993 bombing] and Yousef repeatedly called El-Gabrowny at home and at the Abu Bakr Mosque and Abdel Rahman at home. In December 1992 and January 1993, El-Gabrowny visited Nosair at Attica and later arranged for the World Trade Center bombers to visit Nosair in the weeks preceding the bombing. . . .
On February 24, 1993, [Mohammed] Salameh rented a van to be used in the World Trade Center bombing. As identification, he used a New York license bearing his own name and El-Gabrowny's address. As [Nidal] Ayyad was making arrangements to purchase the hydrogen gas_to be used in the World Trade Center bomb, he called El-Gabrowny. On February 26, 1993, the World Trade Center was bombed, causing six deaths and massive destruction.Abdel Rahman, 189 F.3d at 107-08.
Two days later, on February 28, Ayyad received a call from Salameh at about noon, and called the Elgabrowny home at 2:11 p.m. (GX 508) A few days after that,
[o]n March 4, 1993, federal agents executed a search warrant for El-Gabrowny's home. Salameh's use of El-Gabrowny's address when renting the van used in the bombing provided the basis for the warrant. The warrant allowed a search for explosives and related devices. The search of El-Gabrowny's home revealed, among other things, stun guns and taped messages from Nosair urging fighting and jihad in response to the Jewish immigration to Israel. Just prior to executing the search warrant, the agents encountered El-Gabrowny as he left the building and then, seeing them, started back toward it. The agents stopped and frisked him. El-Gabrowny became belligerent and assaulted two agents. On his person, the agents found five fraudulent Nicaraguan passports and birth certificates with pictures of Nosair and his wife and children.Abdel Rahman, 189 F.3d at 108. In addition, when the agents, searched Elgabrowny's home, they found a notation reading "Nidal . . . important" and bearing Ayyad's home telephone number. (Tr. 8930-36; GX 150) The notation was written on an envelope bearing a Buffalo, New York postmark and dated February 25, the day before the World Trade Center bombing. The envelope could not have reached the Elgabrowny home before Friday, February 26, the day of the bombing. The search warrant having been executed on March 4, the notation necessarily had been written shortly after the World Trade Center bombing, and likely reflected Ayyad's telephone call to the Elgabrowny residence on February 28.
In the face of that evidence, which showed that Elgabrowny was in the thick of the planning for the 1993 World Trade Center bombing, and the forced release of Nosair that was plainly intended as one of its consequences, even to the point of acquiring the stun guns Nosair said he wished he had had the night he killed Kahane, Yousef's failure to mention Elgabrowny cannot be said to be material in the sense that it "'undermines confidence in the outcome of the trial.'" Kyles, 514 U.S. at 435. This is especially so when one considers that the Yousef statements in FBI reports were inadmissible under any recognized exception to the hearsay rule. Admissibility is a significant consideration when the materiality of allegedly suppressed statements is considered. See United States v. Gil, 297 F.3d 93, 104 (2d Cir. 2002).
As to Saleh, proof that Yousef failed to mention 'him pales beside the tape recorded voice of Saleh endorsing jihad activities in the United States (see GX 333T at 25-26, 31-32), proof that he directed an employee of his service station to supply diesel fuel to be used in making a bomb (Tr. 11984, 11990-91, 12039-40; GX 777T at 4-5, GX 793 T at 1-3, GX 366T at 27), his false denial after his arrest that he had provided the fuel, Tr. 12159-63, and his tape-recorded direction to his employee following his arrest to destroy the receipts for the fuel he had provided (Tr. 12081-82; GX 289T at 6). Obviously, the reports were no more admissible as to Saleh than they were as to Elgabrowny.
Further still, Brady applies only if the government is found to have suppressed "information which had been known to the prosecution but unknown to the defense." United States v. Agurs, 427 U.S. 97, 103 (1976). There can have been no suppression of evidence "if the defendant either knew . . . or should have known . . . of the essential facts permitting him to take advantage 'of any exculpatory evidence." United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982). Beyond the substance of the information from Yousef allegedly withheld by the government, which did nothing to exculpate either Elgabrowny or Saleh because none of the evidence against either had the slightest thing to do directly with Yousef, the record discloses also that Yousef himself was at least as accessible to the defense as to the government, if not more so. Again, Yousef was made available to the defense for interview and elected to exercise his Fifth Amendment rights. (See Tr. 13, 165-67, 13209-10, 14, 092-93). Moreover, Elgabrowny has gotten the unredacted copies of the reports, which could have come only from Yousef or someone close to him. Although both petitioners argue that it was the failure to mention them in the interviews as reflected in the reports that is significant, in view of their access to Yousef, and their presumed ability to question him about whether he had contact with either of — them or had mentioned either to the government, it cannot be said that there was suppression of evidence here.
In sum, as to both Elgabrowny and Saleh, Yousef's statements were not exculpatory, were not material and were not suppressed. Therefore, the Brady claims of Elgabrowny and Saleh are wholly lacking in merit.
IV.
As noted, each of these petitioners has asserted that he received ineffective assistance of counsel. Before treating the contentions of each petitioner, it may be useful to take note of some applicable first principles. The first of these first principles, and one especially useful when examining the mistakes these petitioners attribute to their lawyers, is that § 2255 provides a remedy "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in complete miscarriage of justice." United States v. Graziano, 83 F.3d 587, 589-90 (2d Cir. 1996); see also Davis v. United States, 417 U.S. 333, 346 (1974) (same). Such claims as those deriving from alleged misapplication of the Sentencing Guidelines generally do not qualify, and will not be considered when a defendant has failed to raise them on direct appeal.See United States v. Graziano, 83 F.3d 587, 589-90 (2d Cir. 1990); see also, Werber v. United States, 149 F.3d 172, 177 n. 4 (2d Cir. 1998), citing United States v. Springs, 988 F.2d 746, 747 (7th Cir. 1993)("A sentence within the Guidelines . . . cannot be a 'complete miscarriage of justice.' Although a district judge's misunderstanding of the options for sentencing is regrettable, misapprehending the scope of one's discretion is some distance from a 'fundamental defect'").
A petitioner who claims to have suffered as the result of inadequate legal representation cannot secure reversal of a conviction unless he can show that his lawyer's performance fell below "an objective standard of reasonableness" under "prevailing professional norms," Strickland v. Washington, 466 U.S. 668, 687-88 (1984), and that counsel's errors had "an adverse effect on the defense" such that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 693-94. Moreover, a court considering such a claim "must indulge a strong presumption that counsel's conduct falls within the wide rainge of reasonable professional assistance," keeping in mind that "[t]here are countless ways to provide effective assistance in any given case" and that "[e]ven the best criminal defense attorneys would not defend a particular case in the same way." Id. at 689. Although theStrickland standard was formulated in response to a claim of ineffective assistance of trial counsel, it applies as well to claims of ineffective assistance of appellate counsel. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).
By that standard, such decisions as to which arguments to stress, which witnesses to call, which motions to make, and which lines of inquiry to pursue, "fall squarely within the ambit of trial strategy and, if reasonably made, cannot support an ineffective assistance claim." United States v. Smith, 198 F.3d 377, 386 (2d Cir. 1999). Failure to make a motion that likely would not have been granted,United States v. Shareef, 190 F.3d 71, 77-78 (2d Cir. 1999), or to call a witness, or pursue an issue that could have opened the door to damaging evidence, United States v. Diaz, 176 F.3d 52, 112-13 (2d Cir. 1999), cannot constitute ineffective assistance. A lawyer has an obligation to apply his or her independent "professional judgment" in deciding which arguments to make, and need not and should not simply make the arguments a client wishes to make, Jones v. Barnes, 463 U.S. 745, 751, 752-54 (1983), and thereby serve as a mere 'megaphone for a client. Nor must appellate counsel necessarily make every non-frivolous argument that could have been made. Mayo, supra. Such purported shortcomings in the performance of counsel do not raise the specter of a "fundamental defect which inherently results in complete miscarriage of justice." Graziano, supra.
A. Ibrahim Elgabrowny
Elgabrowny claims that he was denied effective assistance both at trial and on appeal. He made that assertion on direct appeal, and was rebuffed by the Court of Appeals, which found that his trial counsel, Anthony Ricco, Esq., had provided "exemplary" representation at trial, Abdel Rahman, 189 F.3d at 144, and, along with other trial counsel who presented appellate arguments that did not go to the question of how they had performed at trial, "continued to do so on appeal," id. at 145. Elgabrowny's substitution of new claims of error by trial counsel for the ones previously rejected on appeal yields an utterly meritless package; his attempt to argue that he received ineffective assistance on appeal in making arguments of ineffective assistance of trial counsel is, if possible, even less persuasive. Although Elgabrowny is represented here by counsel — Polly N. Passonneau, Esq., the same lawyer who represented him on appeal — he has submitted, with the assistance of that counsel two long and tendentious memoranda in which he attacks his trial and appellate counsel's performance (e.g., Elgabrowny Reply at 8-9, 21-25, 27-30), and insists that he is innocent of the charges against him and was convicted based on perjured testimony (e.g., id. at 9-13, 53-54) That is, he seeks to retry on this petition the same issues decided against him at trial. Although certain of Elgabrowny's contentions in these submissions are treated here in the interest of completeness, those submissions should be entirely disregarded. When a party is represented by a lawyer, as Elgabrowny is here, and that lawyer makes arguments in his behalf, as Ms. Passonneau has here, it is no part of that lawyer's function simply to serve as a medium for the infiltration of her client's pro se claims into the record, whether through uncritical inclusion of the client's arguments in her own submissions or sponsorship of those arguments in the client's submission. See Jones v. Barnes, supra. In any event, whether the arguments are those of counsel or client, they are insubstantial for the reasons summarized below.
First, although the standard for evaluating the performance of counsel is an objective one, it bears notice that even Elgabrowny quite obviously does not believe subjectively that his trial counsel was ineffective. When the case was remanded to this court for resentencing, Elgabrowny chose to be represented at that proceeding by the same lawyer, Anthony Ricco, whom he currently attacks as ineffective even as he attacks his current counsel, Ms. Passonneau, for her representation in arguing ineffectiveness of trial counsel during the first appeal.
Second, Elgabrowny's disputes with his trial counsel over such matters as what lines of proof or cross-examination to pursue raise precisely the kinds of issues that have to do with trial strategy and judgment, and do not support a finding that counsel has been ineffective. Thus, Elgabrowny suggests that trial counsel should have argued that Ayyad was calling about some donor to the Nosair defense fund, although Nosair's trial had ended more than two years earlier, and presenting such an argument would have necessitated either calling Elgabrowny as a witness, with all the attendant risks that cross-examination would have posed for him, or calling Ayyad, whose appeals were not yet exhausted and who therefore still had a viable Fifth Amendment privilege. Elgabrowny quibbles as well with details of Ricco's cross-examination of Emad Salem, the government's cooperating witness. (Pet. Ex. K at 82) Such claims need not be treated in detail because merely describing them generally shows that they fit comfortably within the principles set forth on pages 15-16 above.
Elgabrowny maintains in his reply that the fund continued to function after Nosair's imprisonment to provide subsistence for his family. (Elgabrowny Reply at 16).
Third, Elgabrowny claims now that his trial counsel faced a hopeless conflict on appeal because his effectiveness was being challenged by other counsel even as he was raising appellate issues. However, that claim was treated on direct appeal and rejected by the Court of Appeals.See Abdel Rahman, 189 F.3d at 145.
Fourth, to the extent that Elgabrowny suggests his appellate lawyers were ineffective, the record decisively refutes him and the Court of Appeals found otherwise. Counsel raised on appeal some 13 claims of error, and actually succeeded in winning a remand for resentencing that resulted in a sentence 24 years shorter than the one initially imposed — 33 years instead of 57 years.
As appears above, Elgabrowny's claims of ineffective assistance of trial and appellate counsel are without merit.
Accompanying Elgabrowny's pro se memoranda are at least two motions for discovery, and motions for disclosure of grand jury testimony, for appointment of an investigator to search for exculpatory evidence, and to be present at an evidentiary hearing. As appears from the discussion above, there is no merit whatsoever to Elgabrowny's petition, and no hearing is necessary. Therefore, these motions, which are simply derivative of the arguments' in that petition, are without basis and are denied.
B. Mohammed A. Saleh
Mohammed A. Saleh claims that his trial counsel, John H. Jacobs, did not tell him about the penalties he faced or his chances of conviction (Saleh Aff. ¶ 14), did not inform him of plea offers he believes must have been made by the government (id. at ¶¶ 15-16, 20-22), treated him rudely and unfeelingly, and at times threateningly (id. at ¶¶ 17-18), did not seek a downward departure at sentencing (id. at ¶ 24), and did not pursue trial and appellate strategies requested by Saleh (id. at ¶¶ 19, 25). Saleh presents no evidence whatsoever that he ever sought during trial to plead guilty, or that terms he would have considered favorable were in fact proffered by the government or even acceptable to the government. Jacobs' failure to seek a downward departure cannot give rise to a cognizable claim for the reasons discussed on pages 15-16 above, even assuming that such a departure would have been available to Saleh. As noted above, mere differences in trial strategy between a defendant and his lawyer do not give rise to a claim of ineffective assistance of counsel. See Jones v. Barnes, supra.
In an attempt to meet the demanding standard of Strickland, Saleh suggests that various alleged disputes between him and his lawyer meant that his lawyer was laboring under a conflict of interest such that Jacobs could not provide effective representation. However, the kind of "conflict" that signals ineffective assistance of counsel requires a finding that the offending lawyer "actively represented conflicting interests." United States v. Stantini, 85 F.3d 9, 15-16 (2d Cir. 1996). There is no such showing here. Rather, Saleh relies on the purported hostility of his lawyer, and seeks to portray their disagreements as manifestations of Jacobs' "conflict," although governing law makes it clear that a defendant's right to conflict-free representation "does not . . . guarantee a 'meaningful relationship' between the defendant and his counsel." United States v. Doe (Findley), 272 F.3d 116, 122 (2d Cir. 2001) (quoting Morris v. Slappy, 461 U.S. 1, 13-14 (1983). Saleh's argument — that a dispute between a lawyer and a client can be described as a conflict, and therefore that a lawyer who has a dispute with a client labors under a conflict — amounts to little more than a pun on the word "conflict." Certainly, Saleh has not identified any competing or conflicting interest that Jacobs represented such that further inquiry might be warranted.
The only evidence of hostility that appears in the record is contained in the transcript of a robing room conference on August 10, 1995, in which Saleh told me that Jacobs had not spent time with Saleh or spoken to him when Saleh wished to talk to Jacobs, and that Jacobs had addressed Saleh abusively in front of others in the courtroom when I was not present, although' Saleh acknowledged at the outset that Jacobs "is a good lawyer." (Tr. 16183-84, 16186) I told Saleh at the time that he and Jacobs were obviously under a great deal of pressure, and that I thought Jacobs was trying to do his best for his client. (Tr. 16187) Saleh said Jacobs should try to make that intent visible, and Jacobs apologized for losing his temper. (Tr. 16187, 88) Saleh did not press the issue further. That one occasion does not support Saleh's current account of his relationship with Jacobs. Rather, it merely reflects that the sort of tension that develops in a long trial erupted once into an unpleasant encounter. This does not constitute the sort of complete breakdown of communication that prevents an adequate defense and warrants a finding of ineffective assistance. See United States v. Doe (Findley), supra. 273 F.3d at 124, citing United States v. Simeonov, 252 F.3d 238, 241 (2d Cir. 2001); McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981).
C. Amir Abdelgani
Amir Abdelgani's current counsel argues that his trial counsel was ineffective for having failed to mount an entrapment defense. However, the facts did not justify such a defense. The proof at trial showed that Amir Abdelgani was recruited into the conspiracy by Siddig Ibrahim Siddig Ali, a codefendant, who introduced him to the government informant, Emad Salem, at a mosque in lower Manhattan; he was not recruited by Salem himself. (Tr. 5621-22, 5701-07, 6898-99; GX 319, 320, 338A-C, 370) In order to establish an entrapment defense a defendant must establish both that the government or one of its agents induced him to commit the offense, and that he lacked the predisposition to commit it. See United States v. Collins, 957 F.2d 72, 77 (2d Cir. 1992). On the facts proved at trial, Amir Abdelgani could not meet the first prong of that test, wholly apart from the fact that Amir Abdelgani's image and voice on audio and video tapes as he discussed bombing New York landmarks would have strongly negated any suggestion that he lacked predisposition.
In addition, it appears from the record that Amir Abdelgani's counsel, along with others, did introduce the suggestion of entrapment. I instructed the jury at his request, among others, that Amir Abdelgani was among those claiming he had been entrapped (see Tr. 18460-61, 20552), and I did charge the jury on entrapment (Tr. 18458-65, 20552-55).
D. Fadil Abdelgani
Fadil Abdelgani faults his trial counsel, Charles Lavine, Esq., who also represented him on appeal to argue issues other than ineffective assistance of counsel, for having failed to argue on appeal that Fadil Abdelgani should have received an adjustment pursuant to U.S.S.G. § 3B 1.2F, for having played a minor or minimal role in the offense. However, Fadil Abdelgani argued ineffective assistance of trial counsel on direct appeal, through counsel who appeared specifically for that purpose, and did not argue this point. Although the Supreme Court has held that ineffective assistance claims directed at the performance of trial counsel need not be raised on direct appeal even when a defendant is represented on appeal by other than trial counsel, and has suggested that such claims are best raised in § 2255 petitions like this one,Massaro v. United States, 123 S.Ct. 1690, 1694-95 (2003), it has explicitly refrained from directing that such claims may not be raised on direct appeal and must be reserved for collateral review, id. at 1696. Nor do I read Massaro as having done away with the cause and prejudice standard when there is new counsel on appeal specifically mandated to argue ineffective assistance of trial counsel and the alleged ineffectiveness is fully developed in the record. See, United States v. Salameh 152 F.3d 88. 160-61 (2d Cir. 1998) (exception to cause and prejudice requirement for petitioners claiming a Sixth Amendment violation does not apply when petitioner had new counsel on appeal and ground for ineffective assistance argument is fully developed in the record). I recognize that the case on which Salameh relied, Billy-Eko v. United States, 8 F.3d 111, 114-16 (2d Cir. 1993), was overruled in Massaro, 123 S.Ct. at 1694-96, but the Supreme Court did not suggest in Massaro that if a defendant did argue ineffective assistance on direct appeal, he could nonetheless press an additional claim of ineffective assistance that was fully developed in the record at the time of his direct appeal, but was not presented on that appeal.
Further, it is obvious that if the argument for a role adjustment had been made, it would not have been successful. Fadil Abdelgani participated in military training, and helped transport diesel fuel to the safehouse where he participated with others in mixing what he believed to be an explosive mixture for a bomb. Abdel Rahman, 189 F.3d at 127-28. As the Court of Appeals noted in Abdel Rahman, one who seeks a role adjustment under U.S.S.G. § 3B1.2, either four points for a minimal role under subsection (a) or two points for a minor role under subsection (b), must show that his conduct was "'minor' or 'minimal' as compared to the average participant in such a crime." Id. at 159.
Such a reduction "will not be available simply because the defendant played a lesser role than his co-conspirators." Id. Khallafalla, whose role most closely approximates Fadil Abdelgani's, argued on appeal that he was entitled to a role adjustment. The argument was rejected. Id. at 159-60. There is no reason to believe that Fadil Abdelgani would have fared any better. Moreover, it appears that Fadil Abdelgani himself did have the benefit of the argument on appeal because the Court noted that "each appellant seeks the benefit of all arguments briefed by all other appellants." Id. at 149-50. Inasmuch as Fadil Abdelgani argued sufficiency of the evidence, and thus the Court was required to review the proof against him, id. at 127-28, it follows that had the Court thought the evidence against Fadil Abdegani was such as to warrant a role adjustment, he would have received the benefit of the argument advanced by Khallafalla.
Further, although he resolutely disregards the subject, it is worth noting that Fadil Abdelgani testified falsely at trial, id. at 128 (referring to "Fadil's sometimes false and often strained testimony"), and the lawyer whose competence he now attacks managed to convince me that he was the least culpable defendant on trial and to impose a sentence on him that was five years shorter than the sentence imposed on any other defendant. That is not ineffective assistance.
Finally, even if one were to assume that Fadil Abdelgani somehow was the victim of an error in applying the Sentencing Guidelines, as noted at pages 15-16 above, § 2255 provides a remedy "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in complete miscarriage of justice." Graziano, 83 F.3d at 589-90; see also Davis, 417 U.S. at 346 (same). Errors in applying the Sentencing guidelines do not qualify. See Werber, 149 F.3d at 177 n. 4, (citing United States v. Springs, 988 F.2d 746, 747 (7th Cir. 1993)("A sentence within the Guidelines . . . cannot be a 'complete miscarriage of justice.' Although a district judge's misunderstanding of the options for sentencing is regrettable, misapprehending the scope of one's discretion is some distance from a 'fundamental defect.'").
E. Tarig Elhassan
Although Tarig Elhassan's submission is lengthy, it is without substance. As was true of Fadil Abdelgani, Elhassan had new counsel on appeal for the purpose of arguing ineffective assistance of counsel, and he raised such arguments, which were duly considered and rejected by the Court of Appeals. Abdel Rahman, 189 F.3d at 144. As noted above at pages 23-24, although Massaro overruled Billy-Eko and held that a defendant with new counsel on appeal need not argue ineffectiveness of counsel during that proceeding but may await the filing of a petition pursuant to 28 U.S.C. § 2255 before he raises that issue, there is nothing in that case to suggest that if a defendant had new counsel on appeal, and that counsel in fact argued ineffective assistance of trial counsel, that defendant need not show cause and prejudice from failure to raise other ineffective assistance arguments that were apparent from the record and required no further factual development. Elhassan has shown neither cause nor prejudice for his failure to raise the arguments he now presses, and those arguments therefore should be deemed waived.
Further, the arguments themselves are meritless. Elhassan claims his trial and appellate lawyers failed to argue that government misconduct in connection with the investigation should bar the prosecution. However, that point was advanced by codefendant Mohammed Abouhalima before trial and joined in by other defendants, including Elhassan, and was pressed at trial and on appeal by Khallafalla and Mohammed Saleh. If there had been any merit to it, Elhassan would have received the benefit of such merit. The Court of Appeals found there was none. Abdel Rahman, 189 F.3d at 131, 139-40.
Elhassan argues also that the indictment charged the same offense several times, and therefore was multiplicitous, and suggests that counsel were inept for failure to argue this point. However, each of the crimes of which Elhassan was convicted — seditious conspiracy, bombing conspiracy, and attempted bombing — has elements not common to the others, and therefore may be the subject of a separate charge and sentence. See Blockburger v. United States, 284 U.S. 299, 304 (1932); United States v. Chacko, 169 F.3d 140, 148 (2d Cir. 1999).
Elhassan appears to argue that the evidence was insufficient to convict him, principally because he was not a member of the conspiracy for its entire duration. There is no requirement that the same people be involved in a conspiracy throughout its duration for any of them to be convicted.See United States v. Vanwort, 887 F.2d 375, 383 (2d Cir. 1989); United States v. Rooney, 866 F.2d 28, 32 (2d Cir. 1989). In any event, the charge included an instruction with respect to multiple conspiracies, and the point was argued by other counsel. (Tr. 20467-69; 19982-83)
Although Elhassan taxes his lawyer for failure to interview Siddig Ali, he does not suggest how Siddig Ali's testimony could have helped him. In view of the many incriminating tape recordings that included Siddig Ali's voice, it is impossible to imagine how Elhassan's cause could have been helped by calling Siddig Ali as a witness.
Insofar as Elhassan suggests that his lawyer failed to move for a severance, that is simply not so, as the Court of Appeals said specifically when it noted that "she made such a motion to sever Elhassan's case from Abouhalima's, and joined' in the other defendants' motions for a broader severance." Abdel Rahman, 189 F.3d at 144.
F. Mohammed Abouhalima
As noted at page 6 above, Mohammed Abouhalima was tried separately, and convicted, on the single charge of acting as an accessory after the fact to the 1993 World Trade Center bombing by driving his brother Mahmoud to the airport so that the latter could escape. His current claim appears to be that his lawyer should have sought a mitigating role adjustment because Mahmoud Abouhalima's role was minor or minimal with respect to the bombing. However, the offense of conviction was not the bombing itself but rather acting as an accessory after the fact to it. Thus, even assuming that a claim of ineffective assistance in securing a role adjustment under the Guidelines is cognizable in connection with a § 2255 petition, Abouhalima would have to show that his role was minor or minimal in comparison to the role of the usual accessory after the fact. This he has not done, and could not do because his accessorial role was very much in the mainstream — helping a primary violator escape.See, e.g., United States v. Ruffin, 613 F.2d 408, 420 (2d Cir. 1979)(dictum) ("An accessory after the fact was one who, after a felony had been completed, harbored the principal . . . or otherwise helped him to escape punishment.").
IV.
Elhassan has argued that the interrogatories on the verdict sheet, which asked the jury to specify which of the charged objects of the seditious conspiracy the government had proved, if any, worked a constructive amendment of the indictment. Elhassan has shown neither cause external to himself for his failure to raise this point on direct appeal, nor resulting prejudice, and therefore cannot be heard to raise the point now. See cases cited at page 8, above.Moreover, the point itself is without merit because the interrogatories could have had the effect only of making specific the jury's finding as to whether the charges in the indictment were proved, not of amending those charges. The interrogatories neither added nor changed any element of those charges.
V.
The sentences for defendants convicted of seditious conspiracy, for which there is no specific guideline, were computed by determining the closest analogous guideline, as the Sentencing Guidelines direct. See U.S.S.G. § 2X5.1. That guideline was found to be the treason guideline, U.S.S.G. § 2M1.1, and the Court of Appeals affirmed that analogy. See Abdel Rahman, 189 f.3d at 150-54. Clement Hampton-El argues in a supplemental submission that Amendment 591 to the U.S. Sentencing Guidelines, effective November 1, 2000, see U.S.S.G. App. A, at 443 (2000), somehow places the computation of his sentence in doubt, that it should be applied retroactively, and that doing so would result in reduction of his sentence. He contends also that U.S.S.G. § 2X1.1, which provides that the offense level for a conspiracy generally is the offense level of the crime that is the objective of the conspiracy, should have been applied to his case instead of U.S.S.G. § 2M1.1. However, as set forth below, the amendment in question has no application whatsoever to computation of Hampton-El's sentence, or any other sentence imposed in this case, and U.S.S.G. § 2X1.1 is not specifically directed at seditious conspiracy but applies to conspiracies generally. Therefore, neither of Hampton-El's contentions can provide a basis for relief.
The amendment Hampton-El cites provides that when a specific guideline applies to an offense of conviction, it must be followed, absent a stipulation in a binding plea agreement that an alternative guideline applies. After that amendment took effect, judges could no longer determine that a defendant's offense conduct was somehow atypical and therefore governed, through analogy, by a guideline other than the one facially applicable to it. See United States v. McCarthy, 271 F.3d 387, 402 (2d Cir. 2001) (Appendix A "was amended and no longer permits the district court to find a case 'atypical' and sentence outside the offense guideline.").
Hampton-El's reliance on Amendment 591 is misplaced.
For the above reasons, the relief requested by each petitioner is denied and the petitions are dismissed.