The opinion of the court was delivered by: DUFFY
KEVIN THOMAS DUFFY, D.J.:
Defendants, Ramzi Ahmed Yousef, ("Yousef"), Abdul Hakim Murad ("Murad"), and Wali Khan Amin Shah, ("Shah"), are charged with conspiring and attempting to damage, destroy and bomb numerous United States commercial airliners operating in East Asia routes, all but one of which had some United States city as a scheduled stop. Defendants are also alleged to have been responsible for the detonation of a bomb in the Greenbelt Theater in Manila, Philippines, on or about December 1, 1994. Defendant Yousef is charged with the detonation of another bomb on December 11, 1994, aboard Philippine Airlines Flight 434 bound for Tokyo, Japan, which exploded while the airplane was in flight, causing the death of one passenger, Haruki Ikegami, and injuring several others. Both of these explosions are included as overt acts in the conspiracy to blow up the United States airliners, and the explosion aboard the Philippines airliner is charged as a separate count in the indictment.
All three Defendants have made various pretrial motions. Yousef moves for (1) dismissal of the indictment because of the alleged mistreatment he suffered while in the custody of unidentified individuals in Pakistan and Pakistani law enforcement agents; (2) dismissal of Count Nineteen of the Indictment, which charges the unlawful placing of a bomb aboard a Philippines airliner, based on jurisdictional "principles of both domestic and international law."
Defendant Murad also moves for dismissal of the indictment for lack of jurisdiction, arguing that the charged offenses did not occur in the "special aircraft jurisdiction" of the United States and that the indictment does not specify the particular United States citizens or property which were the target of the alleged conspiracy.
Defendant Shah moves for dismissal of the indictment alleging that the prosecution of a non-citizen for these extraterritorial crimes in the United States violates the Fifth and Sixth Amendments of the United States Constitution, federal statutory law, and provisions of international law and extradition treaties to which the United States is a party.
For the following reasons, Defendants' motions are denied.
Yousef's Motion to Dismiss the Indictment
Yousef argues that his abduction in Pakistan and the United States' direction of or acquiescence in his alleged torture and interrogation warrant dismissal of the indictment based on the Second Circuit decision in United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974). Yousef argues that under the holding in Toscanino, jurisdiction over him was acquired as a result of a deliberate, unnecessary and unreasonable invasion of his rights. However, contrary to Yousef's arguments, Toscanino does not stand for the proposition that such allegations must result in dismissal of an indictment. See United States ex rel. Lujan v. Gengler, 510 F.2d 62, 66 (absent a set of incidents like that posited by the Court of Appeals as being present in Toscanino, not every violation by prosecution or police is so egregious that it requires nullification of the indictment).
The court in Toscanino merely remanded to the District Court for an evidentiary hearing to be held only if the defendant "offers some credible supporting evidence, including specifically evidence that the action was taken by or at the direction of United States officials." Id. at 281. On remand, Toscanino's only evidence of his torture and coercive interrogation was his own affidavit, which failed to show participation by United States officials. The trial court, therefore refused to hold an evidentiary hearing and denied the motion to vacate the conviction and dismiss the indictment. See United States v. Toscanino, 398 F. Supp. 916, 917 (E.D.N.Y. 1975).
Like the trial court in the original case, subsequent courts have interpreted the Second Circuit decision in Toscanino narrowly, and generally have refused to dismiss indictments either because of the defendant's failure to establish abusive activity or the defendant's failure to establish United States involvement in the offensive conduct. See United States v. Yunis, 681 F. Supp. 909, 919 (D.D.C. 1988) ("Although most circuits have acknowledged the exception carved out by Toscanino, it is highly significant that no court has ever applied it to dismiss an indictment.") (emphasis in original).
Yousef maintains that a United States official was present during a period of his interrogation when he was taken to a desert jail cell in Pakistan some days after his alleged abduction, but before his arrest and surrender to United States officials in Islamabad on February 8, 1995. (Yousef Aff. P 23). According to Yousef, the torture which he suffered while in the desert consisted of forced intake of drugs to keep him awake and the denial of rest except at meal times. Yousef does not claim that he was tortured or otherwise mistreated during his period of custody in Islamabad, from February 7 to February 8, 1995, or after his transfer to United States agents.
Yousef's allegations of a period of over two months of torture appear incredible, given that there is no record of his arrest by anyone until February 7, 1995 in Islamabad. Additionally, a passport issued in the name of "Ali Muhammad Baloch"
, with Yousef's picture, was found in Yousef's possession at the time of his arrest and contained date stamps that tend to show that Yousef departed Pakistan on January 31, 1995, entered Bangkok, Thailand on February 1, 1995 and departed Bangkok on February 5, 1995. (Garrett Aff., Ex. 5). This passport, therefore, belies his claim that he was in custody in Pakistan between the period of November 1994 and February 7, 1995.
Yousef does not allege a sufficient factual basis for his assertion that a United States official was present during his alleged torture. Yousef alleges that he heard English being spoken during the desert interrogation and that he later recognized the voice as belonging to an FBI agent who questioned him in Islamabad as the same FBI agent who participated in the desert interrogation with unidentified Pakistanis. (Yousef Aff. P 31). Yousef has not identified which FBI agent's voice he now claims he recognized as the one present in the desert. Nor has he stated what role this FBI agent played in the alleged torture.
Two FBI agents did in fact question Yousef in Islamabad. However, these agents, Legal Attache Ralph Paul Horton and Special Agent Bradley J. Garret, were not in Pakistan until February 4, 1995 and February 7, 1995 respectively. (Horton Aff. P 4); (Garrett Aff. P 4). Moreover, according to Legal Attache Horton, who at the time was responsible for all FBI personnel entering Pakistan, no FBI agent was in Pakistan investigating the Yousef matter during this period prior to his arrival. (Horton Aff. P 3).
In United States v. Lira, 515 F.2d 68 (2d Cir.), cert. denied, 423 U.S. 847, 46 L. Ed. 2d 69, 96 S. Ct. 87 (1975), the Circuit Court affirmed the denial of a motion to dismiss an indictment where the defendant's allegations of United States involvement were based on the defendant's overhearing English being spoken during his interrogation. The District Court held that the defendant's allegations were not sufficient "evidence that American agents were present at or privy to [defendant's] interrogation or that the persons overheard to speak English were Americans, much less Government agents." Id. at 71.
Since no FBI agent was in Pakistan during the period of alleged torture, Yousef's allegations of voice recognition appear to be baseless and do not allege sufficient United ...