The opinion of the court was delivered by: MICHAEL B. MUKASEY
MICHAEL B. MUKASEY, U.S.D.J.
Defendant El Sayyid Nosair has moved to strike from Count One of the indictment references to the murder of Meir Kahane, and to sever Counts Five, Six, Seven, Eight and Ten.
Further, defendant Mohammed Abouhalima has moved to strike from Count One references to a plan to assassinate Egyptian president Hosni Mubarak, and to bar all reference at trial to either of these incidents as unduly prejudicial under Fed. R. Evid. 403. In addition, Nosair, Omar Ahmad Ali Abdel Rahman, Mohammed Abouhalima, Fares Khallafalla, Mohammed Saleh and Matarawy Mohammed Said Saleh have moved to sever all counts against them and for separate trials. All defendants have been permitted to join in one another's motions to the extent those motions relate to them, with the exception of Ibrahim El-Gabrowny, who disclaimed any motions other than those he made, a waiver apparently in aid of his unsuccessful motion for a severance and an early trial.
The government has responded with an unusually detailed and lengthy brief meant to serve as a partial evidentiary proffer in opposition to the motions.
Count One of the indictment charges a seditious conspiracy to levy a war of urban terrorism against the United States through a series of violent acts principally in New York, both accomplished and proposed. These violent acts, set forth in that section of Count One listing the means allegedly used by the defendants to further the objects of the conspiracy (Indictment PP 10-15), include the bombing of the World Trade Center in February 1993, the planned bombing of buildings and vehicular tunnels in June 1993, and the assassination of various public figures. They include also the commission of unspecified "acts of terrorism designed to undermine the foreign relations of the United States." (Indictment P 15)
The overt acts allegedly taken in furtherance of this scheme include both the murder in November 1990 at a New York hotel of Meir Kahane (Indictment P 16 f) -- a rabbi and leader of a small radical group opposed, among other things, to any Arab presence within the biblically defined borders of Israel
-- and the proposed assassination of Egyptian president Hosni Mubarak during his 1993 visit to the United Nations (Indictment P 16 t, u).
Defendants argue as to the assassination of Kahane and the planned assassination of Mubarak that, whatever those acts might accomplish or assist, they are simply unrelated to any goal reasonably defined as sedition, and therefore they cannot be included within a count that charges conspiracy to commit sedition. Defendants note that Kahane was not a federal official (indeed, he was an Israeli citizen), that the shooting of the postal officer after the Kahane slaying was entirely unrelated to that officer's governmental function, and that Mubarak is an Egyptian; they argue that killing foreign citizens and incidentally related acts cannot be sedition against the United States. (Nosair Mem. 13, Abouhalima Mem. 65-66, 69-71)
The government's response is that the conspirators themselves saw both acts as furthering a seditious goal: Thus, for example, they regarded Kahane as a proponent of Jewish emigration to Israel and the United States as a supporter of Zionists and pro-Israeli groups (Gov't. Mem. 69), and Kahane presumably as one who fit in one or both categories. Therefore, a blow against Kahane, the government argues, was a blow that was "part of a greater struggle" (Gov't Mem. 70) against the "'infidel' West, of which the United States was deemed the leader" (Gov't Mem. 69), a struggle that included the bombing of the World Trade Center. (Gov't. Mem. 70) Further, the conspirators allegedly regarded Mubarak as a puppet of the United States, and thus a blow against him presumably was a blow against the United States. (Gov't. Mem. 70-71) The crux of the government's argument, however, is not the actual connection between either Kahane or Mubarak and official acts and policies of the United States. The government argues that because both acts were on the agenda of the conspirators and were perceived by them as furthering a goal that included sedition, they should be provable as acts in furtherance of a conspiracy to accomplish sedition:
Aside from the fact that there need have been no furthering [of the goal of sedition] at all for [statutory] liability to be established, . . . the material issue in this case is not what the government (or, for that matter, defense counsel or the Court) believes, however objectively, might advance a war against the United States. The question for the jury is what the defendants intended -- and the appropriate inquiry is whether the evidence the government seeks to introduce, considered in the context of all the proof to be offered, would form an adequate basis for a rational juror to conclude that the defendants intended to levy war on the United States or oppose its authority by force.
(Gov't. Mem. 72) (emphasis in original).
If two or more persons in any State . . . conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder or delay the execution of any law of the United States . . . they shall each ...