Summary
denying motion to dismiss indictment on due process grounds where Defendant claimed that U.S. officials kidnapped him from Honduras and forcibly transported him to the United States for prosecution
Summary of this case from United States v. YousefOpinion
No. S3 08 Cr. 1213 (JFK).
June 30, 2011
Melinda Sarafa, Joshua L. Dratel, Attorney for the Defendant.
Preet Bharara, U.S. Attorney for the Southern District of New York, Of Counsel: Jeffrey A. Brown, Christopher L. LaVigne, Attorney for the Government.
Opinion and Order
Before the Court is Defendant Jamal Yousef's ("Yousef" or "Defendant") motion for discovery, motion to strike surplusage, motion to dismiss the Indictment, and motion to suppress evidence seized from an email account pursuant to a search warrant. For the reasons that follow, the motions are denied.
I. Background
In a Third Superseding Indictment dated July 6, 2009 (the "Indictment"), the Government alleges that Yousef and unnamed co-conspirators agreed to provide a cache of military-grade weapons to an individual purporting to represent the Fuerzas Armadas Revolucionarias de Colombia (the "FARC") in exchange for hundreds of kilograms of cocaine. (S-3 Indictment ¶¶ 6-7). The FARC is designated as a terrorist organization by the United States Government pursuant to Section 219 of the Immigration and Nationality Act. (Id. ¶ 1). According to the Indictment, the FARC is the world's largest supplier of cocaine and is dedicated to the violent overthrow of the democratically-elected government of Colombia. (Id.). The Indictment charges one count of conspiracy to engage in narco-terrorism under 21 U.S.C. § 960a, which provides a heightened sentence for anyone who engages in narcotics activity that would be punishable under 21 U.S.C. § 841(a), or conspires or attempts to do so, while knowing or intending to provide "anything of pecuniary value to any person or organization that has engaged or engages in terrorist activity . . . or terrorism."
A. Yousef's Transport to the United States
In July 2006, Yousef was arrested and later convicted in Honduras of passport fraud and illegal firearm possession and sentenced to a term of imprisonment. (Declaration of Melinda Sarafa ("Sarafa Decl.") ¶¶ 13-14, Ex. 3). On the day of his indictment, July 6, 2009, Magistrate Judge Peck issued a warrant for Yousef's arrest. (Id., Ex. 12). On July 20, 2009, the U.S. Attorney's Office completed a Prosecutor's Agreement to Extradite in connection with an Interpol Red Notice application, which was approved on July 21, 2009. (Sarafa Decl., Exs. 13-14). On August 18, 2009, about one month after his indictment, Yousef received a conditional release from custody in Honduras. (Sarafa Decl., Ex. 16). Contemporaneous with the conditional release, the Honduran Department of Immigration and Alien Affairs issued an order of deportation with respect to Yousef. (Declaration of Gregory Ball ("Ball Decl."), Ex. 1). The Government also produced a letter dated August 19, 2009 transferring custody of Yousef from the Honduran National Police to Interpol. (Ball Decl., Ex. 2). The Government contends that Honduran Interpol agents and Honduran National Police officers arrested Yousef as soon as he finished out-processing from the Honduran prison. (Ball Decl. ¶ 4). The Government maintains that Honduran authorities took Yousef by vehicle convoy to an immigration facility for further processing. (Id.). From there, Yousef, an Interpol agent, and a DEA agent boarded a helicopter which took them to Soto Cano air force base; at the base, they transferred to a chartered jet bound for New York. (Id. ¶ 5).
Yousef, on the other hand, contends that he was kidnapped. Yousef submitted a sworn declaration describing his transport from Honduras to DEA custody in New York. Specifically, Yousef states that he was released from a prison about 25 kilometers from Tegucigalpa, Honduras around 7:30 or 8:00 p.m. on August 18, 2009. (Declaration of Jamal Yousef ("Yousef Decl.") ¶ 5). As he exited the prison, he saw an extended cab pickup truck with two men in the front and four men sitting in the truck bed. These men, as well as two others standing in the street next to the truck, wore masks, jeans, and black vests and held automatic weapons. (Id. ¶¶ 5-6). The two men on the street took Yousef by force and placed him in the back seat of the cab of the truck between them. (Id. ¶ 6). The truck drove with two escort trucks away from the prison and eventually to a dirt road. (Id. ¶ 8). When the truck stopped, the men told Yousef to put his head down; when he refused, they pushed his head down. (Id. ¶ 9). At this point, Yousef alleges that he urinated on himself from fear. (Id.). Yousef was moved from the truck to a waiting helicopter, (Id. ¶ 10), which flew to an airstrip about 10 or 15 minutes away. (Id. ¶ 11). He was then escorted to a small jet waiting on the runway. (Id.). Prior to boarding, photographs were taken of Yousef standing in front of the jet. (Id.).
Yousef contends that Agent Gregory Ball accompanied him on the helicopter. Agent Ball states that another agent rode on the helicopter, whereas he was with Yousef only on the DEA-chartered jet to New York. (Yousef Decl. ¶ 10; Ball Decl. ¶ 5).
Once on board, Yousef asked the other passengers "Who are you?" and was informed that they were U.S. agents, including Special Agent Gregory Ball from DEA. (Id. ¶ 12). The agents read Yousef his rights and gave him a Miranda/speedy presentment waiver form in Spanish, which he signed. (Id. ¶ 13; Sarafa Decl., Ex. 18). The plane flew overnight from Honduras to an airport in Westchester County, with a refueling stop at Guantanamo Bay. (Yousef Decl. ¶ 14). The agents gave Yousef a sandwich and arranged for money on his person to be given to his lawyer. (Id. ¶¶ 14-15).
II. Discussion A. Motion for Discovery
Defendant requests the following discovery pursuant to Rule 16 of the Federal Rules of Criminal Procedure and Brady v. Maryland, 373 U.S. 83 (1963):
a) Any FBI (or other U.S. agency reports) of all meetings with and interviews of Mr. Yousef in Mexico in or about June and July 2006; b) Communications between and information shared by the governments of the United States and Honduras (relevant to Yousef's motion challenging his rendition to the U.S.) regarding: 1) Yousef's arrest in Honduras for passport fraud (both before and after his arrest); and 2) Yousef's seizure and rendition by U.S. authorities from Honduras to the U.S. on or about August 19, 2009; c) The DEA-6 Report prepared by U.S. Drug Enforcement Agency Special Agent Gregory Ball regarding the seizure, rendition, and transport of Yousef from Honduras to the U.S. on or about August 19, 2009; d) The prior three Indictments in this case (i.e., the initial Indictment, S1, and S2); e) Copies of photographs taken of Yousef: 1) in Honduras August 18, 2009, on the runway in front of the plane that would transport Yousef to the U.S.; 2) during immigration processing of Yousef at Westchester County Airport (upon his arrival in the U.S. on August 19, 2009); and 3) in the DEA offices in New York August 19, 2009, inside a holding cell, with DEA Special Agent Federico Alvarez; f) Copies of the intercepted telephone calls (and any translations and/or transcripts) Yousef made from the Metropolitan Correctional Center in October 2010. g) A copy of the "Interpol Writ" pursuant to which Yousef was allegedly seized in Honduras, and all communications related to the issuance and execution of that Writ; h) Any agreements, formal or otherwise, memorialized or not, between the U.S. and Col. Miguel Ramirez Lanza, or between the U.S. and Honduras with respect to Col. Lanza; and i) Any interviews — including notes, reports, memoranda, or any other form of memorialization — of persons who provided exculpatory information, including, specifically, Hassan Rammal. Rule 16 obligates the Government to produce items in its possession, custody or control that (1) are material to preparing a defense, or (2) may be used in its case-in-chief. Fed.R. Cr. P. 16(a)(1)(E). The Government contends that it has already produced items responsive to Requests (a) (FBI reports of Yousef's interviews in Mexico), (e) (photographs), (f) (recordings and transcripts of MCC phone calls), and (g) (Interpol Red Notice).As to Request (a), the Government has produced FBI reports of a June 10, 2006 interview with Yousef in Mexico and a July 14, 2006 interview with Yousef in Honduras. (Declaration of Jeffrey Brown ("Brown Decl."), Ex. D). Yousef claims that during the June 10, 2006 interview, he told a Government official about a fraudulent weapons transaction he contrived to scam a man known as El Padrino. (Yousef Decl. ¶ 20). Yousef further claims that shortly after the June 10, 2006 interview, El Padrino found out from the Government official that Yousef had admitted that the weapons deal was a scam. (Id. ¶ 22). Furthermore, the report of the July 14, 2006 interview makes a passing reference to El Padrino. (Brown Decl., Ex. D at 86). From these facts, Defendant surmises that the FBI must have investigated the purported scam, interviewed El Padrino, and written reports in preparation for the July 14, 2006 interview with Yousef. Therefore, he concludes that the Government's production of materials responsive to Request (a) is incomplete. If reports of any additional interviews or investigation exist, the Government contends that they do not fall under the purview of Rule 16. Indeed, although the defense argues that evidence of prior scams may be relevant to Yousef's intent to consummate the charged transaction, it is difficult to understand how an interview of the unwitting victim of Yousef's purported 2006 scam would assist the defense.
Requests (b) and (c) regarding Defendant's rendition from Honduras relate to the motion to dismiss the Indictment on the basis of outrageous government conduct. However, as discussed further herein, the motion is legally untenable, and no amount of additional discovery will overcome that bar. The Government's position is that Requests (b), (c), and (d) are not properly the subject of Rule 16, and the Court does not see any reason why evidence about Yousef's transport from Honduras to the United States or non-operative indictments would come in during the Government's case-in-chief. As to Request (h), if Col. Lanza is a cooperating witness, the defense should receive that information in due course; if not, the requested information does not exist.
As to Request (i), the Defendant argues that a man named Hassan Rammal may have made statements to the effect that the charged arms-for-cocaine deal was just a scam, not a transaction that Yousef had any intention of consummating. The Government claims that it has no Brady material at all, much less statements obtained from Hassan Rammal. To confirm this for defense counsel, the Government produced two DEA-6 forms memorializing interviews with Rammal in Belize in December 2008 and January 2009. (Brown Decl., Ex. B). In these interviews, Rammal told DEA agents that Yousef was the victim, not the perpetrator, of the allegedly fraudulent weapons transaction charged in the Indictment. Nothing in Rammal's statements indicates that Yousef could not or did not intend to complete the deal. If Rammal made any other statements about the charged transaction, there is no reason to believe that they would be exculpatory, and, therefore, no reason to believe that the Government is withholding Brady material.
The Court finds that the Government has complied with Rule 16. To the extent Defendant's Rule 16 and/or Brady requests implicate material that may be subject to the Classified Information Procedures Act, the Court will address them, along with the Government's competing request for a protective order, in a separate order. The Government is reminded of its ongoing obligation under Brady; otherwise, Defendant's motion for discovery is denied as moot.
B. Motion to Strike Surplusage
Defendant moves to strike certain language in the first five paragraphs of background information about the FARC from the Indictment. Under Rule 7(d) of the Federal Rules of Criminal Procedure, "[u]pon the defendant's motion, the court may strike surplusage from the indictment." "Motions to strike surplusage from an indictment will be granted only where the challenged allegations are not relevant to the crime charged and are inflammatory and prejudicial." United States v. Mulder, 273 F.3d 91, 99-100 (2d Cir. 2001) (quoting United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir. 1990)).
By letter dated June 24, 2011, defense counsel informed the Court that the parties have resolved this motion by stipulating to relevant facts about the FARC, its designation as a foreign terrorist organization, and its terrorist activity in Colombia. Therefore, the motion to strike surplusage is moot.
C. Motion to Dismiss the Indictment
Defendant moves to dismiss the Indictment on the basis of the Government's allegedly outrageous conduct, namely the kidnapping of his person in violation of: (1) the extradition treaty between Honduras and the United States; (2) Fifth Amendment due process protections; (3) international law; and (4) the Prosecutor's Agreement to Extradite in connection with the Interpol Red Notice.1. United States-Honduras Extradition Treaty
The extradition treaty between the United States and Honduras authorizes extradition of persons charged with specified crimes where the defendant committed the offense in either the United States or Honduras, the defendant is located in the United States or Honduras, and "evidence of criminality as, according to the laws of the place where the . . . person so charged shall be found, would justify his apprehension and commitment for trial if the crime or offense had been there committed." Convention for the Extradition of Fugitives from Justice, U.S.-Hond., July 10, 1912, 37 Stat. 1616; see also Supplementary Extradition Convention, U.S.-Hond., June 7, 1928, 45 Stat. 2489. Defendant argues that he was eligible for extradition, and the Government's failure to do so is outrageous conduct in violation of the U.S.-Honduras extradition treaty.
In United States v. Alvarez-Machain, 504 U.S. 655 (1992), the Supreme Court confronted an identical challenge presented by a Mexican citizen who claimed that he was forcibly kidnapped at the behest of DEA agents and brought to the United States in violation of the U.S.-Mexico extradition treaty. As inAlvarez-Machain, the treaty at issue in this case "says nothing about the obligations of the United States and [Honduras] to refrain from forcible abductions of people from the territory of the other nation, or the consequences under the Treaty if such an abduction occurs." 504 U.S. at 663; see also United States v. Sobell, 244 F.2d 520, 524 (2d Cir. 1957) ("[E]ach treaty provides for extradition for certain named crimes and neither the treaty with Peru nor the treaty with Mexico in terms prohibits abduction by one party of criminals found in the territory of the other."). Nor has Defendant suggested any authority for implying such an obligation into the treaty. Cf. Alvarez-Machain, 504 U.S. at 669 ("[T]o imply from the terms of this Treaty that it prohibits obtaining the presence of an individual by means outside of the procedures the Treaty establishes requires a much larger inferential leap, with only the most general of international law principles to support it. The general principles cited . . . fail to persuade us that we should imply in the United States-Mexico Extradition Treaty a term prohibiting international abductions.").
While the United States-Honduras extradition treaty certainly facilitates the international transfer of persons charged with certain crimes, nothing in the treaty's terms limits a signatory's ability to implement such a transfer to the extradition procedures described therein. This interpretation is consistent with the Supreme Court's approach to interpreting the U.S.-Mexico extradition treaty in Alvarez-Machain as well as with the Ninth Circuit's interpretation of the U.S.-Honduras extradition treaty at issue here. See United States v. Matta-Ballesteros, 71 F.3d 754, 762 (9th Cir. 1995) ("The treaties between the United States and Honduras contain preservations of rights similar to those which Alvarez-Machain held did not sufficiently specify extradition as the only way in which one country may gain custody of a foreign national for purposes of prosecution."). Even if U.S. officials did kidnap Yousef from Honduras, nothing in the extradition treaty bars such conduct, and thus the treaty provides no basis for dismissing the Indictment.
2. Due Process
Under the longstanding Ker-Frisbie doctrine, as announced by the Supreme Court in Ker v. Illinois, 119 U.S. 436 (1886), andFrisbie v. Collins, 342 U.S. 519 (1952):
[T]he power of a court to try a person for [a] crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a "forcible abduction." . . . [D]ue process of law is satisfied when one present in court is convicted of [a] crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards.Frisbie, 342 U.S. at 522. Thus, Ker-Frisbie stands for the proposition that the use of unconventional methods to secure a defendant's appearance in the United States does not strip the Government of the power to prosecute that defendant. In other words, there is no exclusionary rule relative to the defendant himself.
The Second Circuit, faced with particularly gruesome facts, blurred the bright line rule of Ker-Frisbie. In United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), an Italian citizen involved in a narcotics conspiracy challenged his conviction on the basis that "his presence within the territorial jurisdiction of the court had been illegally obtained." Id. at 269. Specifically, Toscanino alleged that an agent of the U.S. Government lured him from his home in Uruguay to a deserted area where he was knocked unconscious with a gun, blindfolded, driven to the Brazilian border, and handed off to Brazilian custody at gunpoint. Id. at 269-70. Once in Brazil, defendant alleged that he was tortured for seventeen days. Id. at 270. He claimed that he was denied food and received only minimal nourishment intravenously, he was kicked and beaten, his orifices were flushed with alcohol and other fluids, and he received electric shocks on his earlobes, toes, and genitals.Id. Finally, he claimed that he was drugged, put on a flight to New York, and ultimately arrested. Id.
Under Ker-Frisbie, these facts would have no bearing on the Government's ability to prosecute the defendant. However, theToscanino Court reasoned that cases such as Rochin v. California, 342 U.S. 165 (1952), and Mapp v. Ohio, 367 U.S. 643 (1961), which broadened the concept of due process beyond a guarantee of fair trial procedures, had "weakened" and "eroded" Ker-Frisbie.Toscanino, 500 F.2d at 272-74. The Second Circuit agreed with the Supreme Court's musing in dicta that "we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction," id. at 274 (quoting United States v. Russell, 411 U.S. 423, 431-32 (1973)), and ultimately resolved that due process "require[s] a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the government's deliberate, unnecessary and unreasonable invasion of the accused's constitutional rights." Id. at 275. The Court remanded the case for an evidentiary hearing regarding defendant's allegations of forcible abduction. Id. at 281.
Less than one year later, the Second Circuit backed away from the broad holding of Toscanino, essentially restricting it to its facts. The Court noted that "in recognizing that Ker and Frisbie no longer provided a carte blanche to government agents bringing defendants from abroad to the United States by the use of torture, brutality and similar outrageous conduct, we did not intend to suggest that any irregularity in the circumstances of a defendant's arrival in the jurisdiction would vitiate the proceedings of the criminal court." United States ex rel. Lujan v. Gengler, 510 F.2d 62, 65 (2d Cir. 1975). Indeed, the Court was "forced to recognize that, absent a set of incidents like that inToscanino, not every violation by prosecution or police is so egregious that Rochin and its progeny requires nullification of the indictment." Id. at 66. In Lujan, defendant alleged that he was lured from Argentina to Bolivia, held in Bolivian custody for five days, and then placed on a flight to New York, where he was arrested; however, there were no allegations of torture or custodial interrogation. Id. at 63. The Second Circuit rejected Lujan's challenge to the manner in which he was brought to the United States because he failed to allege "that complex of shocking governmental conduct sufficient to convert an abduction which is simply illegal into one which sinks to a violation of due process." Id. at 66. Cf. United States v. Reed, 639 F.2d 896, 901-02 (2d Cir. 1981) (applying Toscanino and Lujan and holding that "[w]hile we must assume . . . that it was United States government agents who allegedly enticed Reed onto the airplane, and that they did so under false pretenses and with the use of a revolver and threatening language, the conduct involved was not `gross mistreatment'" implicating due process).
Since the Court of Appeals handed down Toscanino, the Supreme Court has reaffirmed the vitality of the Ker-Frisbie doctrine no less than five times. See Alvarez-Machain, 504 U.S. at 670 (holding that since defendant's "shocking" abduction from Mexico to the United States did not violate the extradition treaty between the two countries, under Ker-Frisbie, "respondent's forcible abduction does not therefore prohibit his trial in a court in the United States for violations of the criminal laws of the United States"); INS v. Lopez-Mendoza, 468 U.S. 1032, 1039-40 (1984); United States v. Crews, 445 U.S. 463, 474 n. 20 (1980);Stone v. Powell, 428 U.S. 465, 485 (1976); Gerstein v. Pugh, 420 U.S. 103, 119 (1975). Our sister circuits have called into question Toscanino's viability in light of the barrage of Supreme Court case law to the contrary. See, e.g., United States v. Best, 304 F.3d 308, 312-13 (3d Cir. 2002) ("[I]t appears clear that theKer-Frisbie doctrine has not eroded and that the exception described in Toscanino rests on shaky ground."); United States v. Mitchell, 957 F.2d 465, 470 (7th Cir. 1992); United States v. Darby, 744 F.2d 1508, 1531 (11th Cir. 1984). Even district courts in this circuit have declined to follow Toscanino. See, e.g., United States v. Umeh, 762 F. Supp. 2d 658, 663 (S.D.N.Y. 2011) ("[W]hile the Second Circuit has never explicitly overruled Toscanino, the fact that both of the pillars on which it rests have been removed suggests that all that remains is a rhetorical facade wholly lacking in legal foundation."); United States v. Ghailani, 751 F. Supp. 2d 502, 507 (S.D.N.Y. 2010) (noting that "it is doubtful thatToscanino remains authoritative," particularly in light of the Second Circuit's reliance on Ker-Frisbie in Brown v. Doe, 2 F.3d 1236 (2d Cir. 1993)). Thus, in the unlikely event that Toscanino remains good law, Defendant must put forth truly disturbing facts to justify due process relief; otherwise, dismissal of the Indictment is unwarranted.
Defendant's claim that his alleged kidnapping from Honduras necessitates dismissal of the Indictment fails on a number of levels. Setting to one side the legal framework discussed above, Defendant's claim is factually insufficient because it is not clear that U.S. agents kidnapped Yousef or that he was kidnapped at all. There is no allegation that the masked men in the extended cab pickup truck who allegedly abducted Yousef from the Honduran prison were U.S. Government agents or people working at the behest of the U.S. Government. If, in fact, those men were Honduran officials, then the only conduct attributable to the U.S. Government is that DEA agents read Defendant his rights, provided him a waiver form in Spanish, fed him a sandwich, and gave his money to defense counsel. This is hardly outrageous.
Additionally, the documentary evidence submitted by the Government suggests that Yousef was arrested by Honduran National Police based on the Interpol Red Notice and transferred to Interpol custody in accordance with the Honduran expulsion order. (Ball Decl., Exs. 1-2). A lawful arrest and expulsion, even if performed by armed, masked agents, is simply not a kidnapping. Defendant's suggestion that his abduction was a joint venture between the United States and Honduras, with the United States directing Honduras to expel Yousef, lacks any evidentiary basis. The two countries obviously did cooperate in transferring Yousef to the United States, but there is nothing to indicate that the entire operation was contrived by the United States, nor is it reasonable to assume that the United States forced or directed Honduras to expel Yousef. At best, the United States could request his expulsion, but the decision to expel was that of a sovereign state.
More importantly, however, the motion to dismiss the Indictment fails as a matter of law. Taking as true every fact Yousef alleged, and assuming that his "kidnappers" were U.S. Government agents, Defendant cannot overcome the legal bar ofKer-Frisbie. Even under Toscanino, to the extent it is authoritative, Defendant has not established a basis for dismissal. Although Yousef alleges that his abductors were armed, there is no contention that they held him at gunpoint, struck him with a weapon, or threatened in any way to use the weapon if he did not cooperate. The only allegation of physical force is that an agent pushed Yousef's head down when Yousef refused to do so himself. These allegations pale in comparison even to those inLujan, and do not come close to the level of torture and brutality that compelled the Court in Toscanino to stray fromKer-Frisbie's dictate. Cf. United States v. Noorzai, 545 F. Supp. 2d 346, 352 (S.D.N.Y. 2008) (under Ker-Frisbie, "allegations of deceit and government misconduct, which do not implicate physical abuse of any kind, are insufficient to provide any basis for refusal to entertain this prosecution on due process grounds"). Since the allegations, taken entirely at face value and in the light most favorable to the defense, reveal no conduct that shocks the conscience, there is no need for an evidentiary hearing on this motion. Moreover, any question of fact, for example, about the U.S. Government's involvement in Yousef's alleged abduction, is irrelevant in light of Ker-Frisbie's unequivocal rejection of Defendant's due process argument and requested relief. Ker-Frisbie similarly invalidates Yousef's allegations that violations of international law as well as the Prosecutor's Agreement to Extradite divest the Government of the power to bring him to trial in the United States. See Umeh, 762 F. Supp. 2d at 664. Nevertheless, the Court will address the arguments in turn as each fails on its own merits.
3. Violation of International Law
Defendant argues that his alleged abduction from Honduras violated the U.N. Charter. Defendant can point to no case law or provision of the Charter conferring on an aggrieved defendant an individual right of enforcement. Instead, the Second Circuit has made clear that "abduction from another country violates international law only when the offended state objects to the conduct." Lujan, 510 F.2d at 68. Honduras certainly has not protested Yousef's alleged abduction, nor is it likely to as: (1) documentary evidence submitted by the Government suggests that Honduran officials knowingly transferred Yousef into U.S. custody; and (2) Yousef is not a Honduran citizen. Moreover, even if Yousef had alleged a cognizable violation of international law, there is no precedent suggesting that dismissal of the Indictment is an available or appropriate remedy. See Umeh, 762 F. Supp. 2d at 664 (in light of Ker-Frisbie, defendant's "allegations that the United States violated international law in effectuating his transfer to the United States are irrelevant").
4. Violation of Prosecutor's Agreement to Extradite
Defendant also argues that his abduction from Honduras violated the Government's commitment, as expressed in the Prosecutor's Agreement to Extradite and in the Interpol Red Notice, to request his extradition. Specifically, the Interpol Red Notice states that: "Extradition will be requested from any country with which the requesting country is linked by a bilateral extradition treaty, an extradition convention or by any other convention or treaty containing provisions [for] extradition." (Sarafa Decl., Ex. 14, at 17). The Red Notice approval letter provides that it is "a firm commitment by your office, and by the United States to request this fugitive's extradition in all but the most exceptional circumstances." (Sarafa Decl., Ex. 14, at 12). Defendant argues that the commitment to request extradition absent "exceptional circumstances" ties the Government's hands such that it can only prosecute him if his presence in this country is obtained through extradition. Defendant's reading of this document is oversimplistic. The agreement reflects an obligation on the Government's part to perform the work necessary to complete an extradition, not a representation that the Government will forego a defendant's appearance in this country absent extradition. Particularly in this circumstance, where the Honduran government was apparently willing to expel Yousef and hand him over to Interpol voluntarily, it would be illogical to nevertheless require the U.S. Government to pursue extradition. And again, even if the Government did violate the Agreement to Extradite and/or the Red Notice, Defendant has cited no law indicating that he has standing to personally enforce the agreement or that its violation warrants dismissal of the Indictment. The motion to dismiss is denied in all respects.
D. Motion to Suppress
Defendant alternatively argues that if the Indictment is not dismissed, any evidence obtained as a result of the Government's various forms of allegedly outrageous conduct, including statements and any seized property, should be suppressed as "fruit of the poisonous tree." Having found no predicate due process violation caused by Yousef's transport from Honduras to the United States, the fruits of any interrogation or search are not tainted and suppression is unjustified.
Defendant additionally moves to suppress evidence obtained pursuant to a search warrant issued for the email account sumasiempre123@yahoo.com, arguing that the DEA agent who swore out the affidavit in support of the warrant omitted certain information material to the Magistrate Judge's probable cause determination.
Before considering the merits of Defendant's argument, the Court must determine whether Yousef has what is imprecisely referred to as "standing" to challenge the search warrant. Fourth Amendment rights "are personal rights . . . [that] may not be vicariously asserted." Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). The Fourth Amendment protects against unreasonable search where the "defendant has established a legitimate expectation of privacy in the area searched." United States v. Chuang, 897 F.2d 646, 649 (2d Cir. 1990) (citing United States v. Rahme, 813 F.2d 31, 34 (2d Cir. 1987)). The Court must consider whether defendant has demonstrated a subjective expectation of privacy and whether that expectation is one that society accepts as reasonable. Id. Yousef acknowledges that the sumasiempre123 email account was shared among a small group of people who all knew the password, but states that he nonetheless expected that the account's contents would only be accessed by those "authorized" users. (Supplemental Declaration of Jamal Yousef ¶ 5). Even if Yousef has demonstrated a subjective expectation of privacy, it is, to say the least, questionable whether society would consider an expectation of privacy with respect to a shared email account where more than one person knew the password to be objectively reasonable.
Nevertheless, even if Yousef had a legitimate expectation of privacy in the shared email account, his challenge to the search warrant fails on the merits. The crux of his argument is that the DEA agent who swore out the affidavit in support of the search warrant had two pieces of information indicating that Yousef's weapons deal was a scam, but failed to disclose this information to the Magistrate Judge who made the probable cause determination. Defendant requests a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), regarding these alleged omissions. "To be entitled to a Franks hearing, a defendant must make a `substantial preliminary showing' that: (1) the claimed inaccuracies or omissions are the result of the affiant's deliberate falsehood or reckless disregard for the truth; and (2) the alleged falsehoods or omissions were necessary to the judge's probable cause finding." United States v. Salameh, 152 F.3d 88, 113 (2d Cir. 1998).
The affidavit supporting the warrant lays out probable cause for the search of the email account as follows: A paid confidential source told DEA agents in Bogota, Colombia that he was negotiating the purchase of weapons in exchange for narcotics from Yousef. (Sarafa Decl., Ex. 8, ¶ 7). The confidential source met with Yousef's associate several times in 2008 to work out the terms of the deal. (Id.). One such term was the provision of photographs to confirm the existence of the weapons for sale. (Id. ¶ 8). Accordingly, in October 2008, the confidential source received a series of photographs depicting an "Arab male" posing in front of a weapons cache holding a Belizean newspaper. (Id. ¶ 9). In December 2008, the same "Arab male" from those photos, Rammal, met with DEA agents in Belize, revealed the existence of and the password to the sumasiempre123@yahoo.com account, and told them that he used the email account to conduct a fraudulent, large-scale weapons deal. (Id. ¶ 11).
Hassan Rammal
Defendant argues that the photos of Rammal with various weapons that were cited in support of the warrant application are visibly altered, which should have suggested to the affiant that Rammal was truthful about using the email account to perpetuate a weapons scam. Regardless of whether or not Rammal intended to consummate the transaction, it does not follow that his counterparty — be it Yousef or anyone else — was any less serious about purchasing the large cache of weapons. In fact, the Magistrate was well aware that Rammal claimed to be operating a scam, but nevertheless found probable cause to believe that the email account contained evidence of a crime, which could have been evidence regarding either Rammal or his counterparty in the deal. Thus, information that Rammal created fake photos of the weapons cache in furtherance of a scam — of which the Magistrate was already aware — would have no effect on the probable cause finding, particularly with respect to evidence of Yousef's criminal activity.
Additionally, Defendant argues that the warrant affiant failed to inform the Magistrate that in 2006, more than two years before the application, Yousef told a U.S. Government official that he had engaged in the scam weapons transaction with El Padrino. As an initial matter, Defendant has not set forth any convincing argument as to how knowledge of Yousef's unverified claim to have defrauded El Padrino two years prior would have diminished the Magistrate's finding that there was probable cause to believe that the sumasiempre123 email account contained evidence of an unrelated 2008 arms-for-cocaine deal. Moreover, Defendant has not demonstrated that the DEA agent who swore out the affidavit in fact knew or should have known about the 2006 scam. As previously discussed, Yousef met with U.S. Government officials on June 10, 2006 and July 14, 2006; however the reports of those interviews make no mention of a scam and only fleetingly refer to El Padrino. The FBI report of the June 10, 2006 interview in Mexico City memorializes Yousef's involvement in a fraudulent passport scheme. (Brown Decl., Ex. D). The FBI report of the July 14, 2006 interview notes that Yousef provided the U.S. official with information about a shipment of weapons and drew a map showing the location of the warehouse in Lebanon where the weapons were ostensibly stored. (Id. at 86). The search warrant affiant was entitled to rely on the accuracy of those reports, and nothing therein would have alerted the affiant to the possibility that Yousef had any weapons deal with El Padrino, much less a scam. Therefore, Defendant has not established that the affiant knew about Yousef's purported 2006 weapons scam and omitted it from the search warrant affidavit deliberately or even recklessly as required under Franks. In reality, the only additional facts that the affiant reasonably could have known and included in the search warrant application are that (1) in 2006, Yousef gave U.S. officials detailed information about the location of a weapons cache in Lebanon, and (2) in 2008, after conducting significant negotiations for the purchase, Rammal used an email account to send altered photos of weapons to Yousef. Had the affiant informed the Magistrate that a man with previous access to a weapons cache received photos of weapons for sale sent from the sumasiempre123 email account, the Magistrate's probable cause finding would only have been stronger. As Defendant has not made a substantial showing that the alleged omissions were either deliberate or material to the Magistrate's probable cause inquiry, he is not entitled to a hearing. The motion to suppress evidence seized from the sumasiempre123@yahoo.com email account is denied.
III. Conclusion
Defendant's motion for discovery is denied as moot. Defendant's motion to strike surplusage from the Indictment has been resolved by stipulation and is also moot. The motion to dismiss the Indictment and motion to suppress are denied without a hearing.