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UNITED STATES v. KHALED MOHAMMED EL-JASSEM

April 16, 1993

UNITED STATES OF AMERICA
v.
KHALED MOHAMMED EL-JASSEM, Defendant.



The opinion of the court was delivered by: JACK B. WEINSTEIN

 Weinstein, J.:

 TABLE OF CONTENTS

 I. FACTS

 II. JURY

 
A.Selection
 
B.Additional Voir Dire
 
C.Sequestration

 III. EVIDENCE

 
A. Handwriting
 
B. Fingerprints
 
C. Explosives

 IV. POST-VERDICT PROCEDURES

 V. CONTENTIONS OF THE DEFENDANT

 VI. LAW

 
A. Publicity
 
B. Sequestration
 
C. Continuance
 
D. Lack of Extradition Limits on Court's Power

 VII. APPLICATION OF LAW TO FACTS

 
A. Fairness of Jury and Trial
 
B.Fairness of Court

 VIII. SENTENCING CONSIDERATIONS

 
A. Generally
 
B. Affiliation With Terrorist Organizations
 
C. 1979 Arrest in Germany for Terrorist Activities
 
D. Effect on Family
 
E. Limits Imposed by Italian Authorities

 IX. SPECIFIC SENTENCE

 
A. Consecutive Sentences
 
B. Prison
 
C. Time Credited From Arrest in Italy
 
D. Fine

 X. CONCLUSION

 Defendant was found guilty by a jury of attempting to explode three powerful car bombs -- one at 43rd Street and Fifth Avenue, one at 47th Street and Fifth Avenue and one at John F. Kennedy Airport. His motion for a judgment of acquittal for lack of evidence or for a new trial on the grounds that his trial was unfair are meritless. To incapacitate defendant and to deter others from committing similar serious crimes the defendant is sentenced to the statutory maximum -- thirty years in prison and a fine of $ 30,000.

 I. FACTS

 On March 5, 1973 a New York City tow truck operator impounded an illegally parked car on the corner of 43rd Street and Fifth Avenue. The following morning, another car was towed from the corner of 47th Street and Fifth Avenue. Each had a newspaper with Hebrew lettering on the dashboard. That same day a rental car company official claimed one of the cars at the impound lot. Upon opening the trunk he discovered large plastic containers filled with gasoline, a charged propane tank, high explosives, a blasting cap, a timing device and a battery -- all connected with wires and set to explode.

 The bomb squad was called to dismantle the device. A search of the pound revealed an identical bomb in the second car. Later that night, a third car with a similar newspaper on the dashboard was discovered parked outside the El Al Airlines cargo-passenger terminal at John F. Kennedy Airport; the bomb squad found an explosive device identical to the two from midtown Manhattan except that it was twice as powerful.

 The terrorist organization, Black September, whose flyers were found in each of the three cars, claimed responsibility for the bombs. The immediate intended targets in addition to El Al Airlines, the national airline of Israel, were the Israel Discount Bank at 43rd Street and Fifth Avenue, and the First Israeli Bank and Trust at 47th Street and Fifth Avenue.

 A defect in all three bombs prevented the explosions. The FBI reconstructed one of the bombs and placed it in the trunk of a car in a large open field. A sound recording and video picture of the detonation revealed an enormous concussion, a huge fire ball more than a hundred feet in diameter, a demolished car and many small pieces of metal propelled at high speed far from the scene of the explosion. These bombs would have seriously damaged buildings and vehicles in the area. Depending on when they went off, they could have killed and maimed hundreds, caused large fires and terrorized thousands of people. The video was not shown to the jury since it was extremely disturbing to viewers and was not essential to the case the government was presenting.

 All three cars had been rented by a person calling himself Yusif Aid Shahein. The three cars were searched and their contents seized. Latent fingerprints were lifted from a part of one of the bombs, from the trunk of one car, from a map in one glove compartment and from Palestinian Liberation Organization ("PLO") and Black September propaganda folded within the newspapers within the cars.

 Within a week, the FBI focused on an individual named Khalid Al-Jawary, who had entered the United States two months earlier. He had stayed at a midtown Manhattan hotel and at two hotels in New Jersey. He had rented a series of cars from a car rental agency and had applied for flight instruction at the Teterboro School of Aeronautics. At one point Al-Jawary wired abroad for additional money. He received $ 1500 from Beirut, Lebanon and converted it into travelers cheques. On March 3, Al-Jawary had checked into the Skyway Hotel at Kennedy Airport, across the street from the El Al terminal. On March 4, he had telephoned a woman he had met in New Jersey to inform her that he had to leave the United States unexpectedly. He was not seen here again for seventeen years.

 Sixty fingerprints from twenty-seven items, handwriting on twenty-two documents, hidden papers and parts of bomb materials were found in rooms occupied by Al-Jawary or Shahein. There was no doubt that the two names were used by one person who was responsible for the three bombs.

 In 1973 Al-Jawary was indicted for the airport bomb in the Eastern District of New York and for the two Fifth Avenue bombs in the Southern District of New York. The defendant moved to consolidate these two indictments for trial in the Eastern District of New York after the defendant was apprehended and brought before this court.

 In January 1990 the FBI agent assigned to the case notified the Italian national police that a person named Khaled Mohammed El-Jassem was passing through Leonardo Da Vinci International Airport in Fiumicino, Italy. He was a PLO employee living in Cyprus and believed to be involved in smuggling explosives in Europe. The FBI requested the Italian authorities to hold the defendant based upon a comparison of his fingerprints with those of Al-Jawary-Shehein. The prints matched.

 The United States sought extradition of the defendant to stand trial for the attempted 1973 bombings. The Italian treaty provides that, for extradition purposes, the crime charged must be a felony carrying a penalty of more than one year; in the event of a crime where the death penalty might be imposed, the United States must assure the Italian government that it will not impose death. One of the grounds raised by defendant in opposition to his extradition was that the crime for which he was charged carried the death penalty. In its decision the Rome Appeal Court rejected this contention, addressing the penalty that might be imposed as follows:

 
[We] have other conditions; the extradition Treaty with the United States requires:
 
* * *
 
b. The crimes are punishable . . . with a restrictive sentence of more than at most one year imprisonment, in particular for the crimes here examined is provided in Title 18 of the Federal Code, Sec. 844(i) the maximum sentence is imprisonment up to ten years and a fine of $ 10,000, or both. ...

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