and if so what it is. The government is to pursue that issue diligently. If the government does not agree to tell El-Gabrowny what it learns, the government is to tell the court what it learns. In any event, should the person identified in the exhibit testify at trial in a manner that inculpates El-Gabrowny, the court will consider whether the information contained in the exhibit should be made available to El-Gabrowny's attorney.
Claims by individuals or groups, other than those charged or convicted in this court, that they were responsible for the February 1993 bombing of the World Trade Center, were disclosed to counsel in Salameh, although the government for obvious reasons disputes whether they are to be considered Brady material. I understand the government to have undertaken to disclose claims such as those contained in Exhibit D to the Price declaration and those already disclosed in Salameh, in like fashion in this case, and thus there is no occasion to decide whether they are discoverable as Brady material.
The expression of opinion contained in Exhibit B to the Khuzami declaration is, in essence, only a prediction of the likely course of an investigation. It is not evidence, does not suggest the existence of evidence, and therefore is not discoverable as Brady material.
Finally, the first of the documents attached as Exhibit B to the Price declaration contains information about the credibility of a potential government witness, and thus is discoverable under Giglio. The negative expression of opinion with respect to the credibility of a potential government witness, contained in Exhibit D, although of a kind potentially admissible under Fed. R. Evid. 608(a), which permits expressions of opinion as to credibility, contains nothing to indicate the competence of the person offering the opinion, or even the identity of that person. Because such an expression of opinion would not materially assist the jury in evaluating the credibility of the potential witness, the document cannot be considered to contain Giglio material.
Because I have determined that some of the information submitted for review is discoverable within the broad definition adopted above, it is necessary now to decide whether it should be disclosed and, if so, in what form. Here, the test to be applied involves balancing the defendant's need for the information or its value to the defendant, against the possible damage to the government's security interests from disclosure. Certain courts have drawn an analogy between deciding whether to direct disclosure of classified information and deciding whether to direct disclosure of a government informant's identity pursuant to Roviaro v. United States, 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957). United States v. Pringle, 751 F.2d 419, 428 (1st Cir. 1984), vacated and remanded on other grounds sub nom. United States v. McAfee, 479 U.S. 805, 93 L. Ed. 2d 10, 107 S. Ct. 49 (1986); United States v. Yunis, 276 U.S. App. D.C. 1, 867 F.2d 617, 622-23 (D.C. Cir. 1989). Another, without reference to Roviaro, has endorsed the need to strike a balance. United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988).
Applying such a test to the information at issue here, the first and obvious result is that inculpatory material which the government does not intend to offer at trial need not be disclosed. Such information cannot conceivably help a defendant, and therefore is both unnecessary and useless to him. Thus, the statements contained in the first two documents attached as Exhibit A to the Price declaration, and the statements contained on the' fifth page of the second of the documents attached as Exhibit B to the Price declaration, all inculpatory of Rahman, need not be disclosed.
Rahman's statement, contained in the last of the three documents attached as Exhibit A to the Price declaration, indicates at most that he was disinclined to flee before the indictment in this case. One might argue that if flight may be proved to show a defendant's consciousness of guilt, then failure to flee may be proved to show his consciousness of innocence. There are flaws in that logic. To begin with, flight itself may be highly ambiguous, and juries generally are instructed that they need not consider it as reflecting consciousness of guilt. See, e.g., United States v. Castro, 813 F.2d 571, 578 (2d Cir.), cert. denied, 484 U.S. 844, 98 L. Ed. 2d 94, 108 S. Ct. 137 (1987). The failure to flee here, if that is what it was, is even more ambiguous, because (i) the proof relates to a time before the indictment in this case, and (it) it is unclear whether flight was feasible, let alone whether it was feasible in the manner referred to in the document. The relevance of this proof, if any, is gossamer. To the extent it may be relevant, the underlying facts presumptively are known to Rahman; after all, it is his statement that is in question. Finally the prejudice to the government from disclosing its knowledge of this particular statement would be substantial because to do so would potentially disclose an intelligence source and also potentially injure the foreign relations of the United States. Here, the balance weighs against disclosure.
Of the Giglio material discussed above, only the information contained in the first of the documents attached as Exhibit B to the Price declaration, relating to the credibility of a potential government witness, need be disclosed. Here, it is sufficient to disclose the substance of the information, and I do not understand the government to oppose such disclosure. The document itself need not be disclosed.
There remains only the issue of whether the government's submission itself or any part of it should be disclosed. The Price and Khuzami declarations discuss the substance of the classified information submitted for review, and other classified information, and need not be disclosed. Exhibits A and C to the Khuzami declaration are correspondence that is not classified and should be disclosed. The government's memorandum of law, like the declarations, discusses the substance of the classified information submitted for review and other classified information, and will not be disclosed.
Except as set forth above, the government's motion is granted. The submissions in question will be sealed and kept in the possession of the court security officer, and made available for appellate review, if necessary.
Dated: New York, New York
November 4, 1994
Michael B. Mukasey,
U.S. District Judge