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April 16, 1997


The opinion of the court was delivered by: MUKASEY


 Defendant Mohammed Abouhalima is the brother of Mahmoud Abouhalima, convicted after trial before Judge Duffy of participating in the February 1993 bombing of the World Trade Center. Mohammed Abouhalima is indicted in this case as an accessory after the fact to the World Trade Center bombing in that he drove his brother Mahmoud to the airport allegedly with the intent of helping the latter to escape. Mohammed Abouhalima moves to dismiss the current indictment on the ground that its continued prosecution is barred by the Speedy Trial Act, 18 U.S.C. § 3161 et seq., principles of double jeopardy, and by the Sixth Amendment's guarantee of a speedy trial. For the reasons outlined below, the motion is denied.


 Mohammed Abouhalima was one of several defendants charged with seditious conspiracy in a previous indictment ultimately tried before me in 1995. He first appeared before the court on August 26, 1993. Both sides agree that all time between then and the date of the stipulation of severance, October 18, 1994, was properly excluded from the Speedy Trial Act computation. In addition, the stipulation between the parties included the following language:

The government and the defendant Mohammed Abouhalima further agree that a period of thirty (30) days is appropriate for those parties to continue to explore the possibility of disposing of this matter without a trial. With that understanding, the government will not seek Mohammed Abouhalima's indictment when it asks the grand jury to return a superseding indictment on October 19, 1994. The parties agree that the thirty-day period for plea discussions serves the ends of justice and outweighs the interests of the public and the defendant in a speedy trial, such that an exclusion of time by the Court, pursuant to 18 U.S.C. Section 3161(h)(8)(A) is warranted.

 As set forth in the stipulation, the government did not seek to reindict Abouhalima in the next superseding indictment it caused to be filed, and Abouhalima does not seek to count against the government the 30 days excluded by the stipulation. (Abouhalima Mem. at 5)

 In early 1994, however, this defendant had filed a pretrial motion on his own behalf and on behalf of his codefendants seeking to dismiss the indictment on the ground of outrageous government misconduct, such misconduct consisting principally of overreaching in the nature of entrapment by the government's informant, Emad Salem. During a pretrial hearing on March 31, 1994, I disclosed my intention to postpone any hearing in connection with that motion until after trial (3/31/94 Tr. 13), and that is what I did. The rationale for that approach was not that the motion should simply be put off, but rather that because a good deal of the misconduct defendants alleged would be explored in the course of Salem's testimony at trial, whether in support of entrapment defenses or otherwise, the trial itself would serve at least in part as the evidentiary portion of the hearing. This would avoid having Salem testify twice about the same matters. The trial started in January 1995 and lasted until October 1, 1995. As anticipated, a great deal of the evidence said to support this motion was developed at trial, although the grounds for the motion were later expanded by other defendants to include alleged destruction of evidence by Salem and the government, and some additional evidence was taken after the trial at a hearing conducted on December 20, 1995. In an opinion read in open court on January 10, 1996, I denied the motion. The current indictment, S7 93 Cr. 181, was filed under seal on July 16, 1996, and Abouhalima was arrested on September 18, 1996.


 In bare bones, Abouhalima's argument is as follows: (i) the Speedy Trial Act clock began to run, at the latest, on November 18, 1994, the 30-day grace period stipulated by the parties following Abouhalima's severance from the earlier indictment having expired the day before; (ii) even excluding the period of the trial itself, and 10 days thereafter for consideration of Abouhalima's motion, some 285 days of unexcludable time elapsed until the unsealing of the current indictment, and 261 additional days would be included if the trial period itself were counted; (iii) these elapsed periods vastly and inexcusably exceed the Speedy Trial Act limit of 70 days, and accordingly the earlier indictment from which Abouhalima was severed must be dismissed with prejudice; (iv) the current charge is one required by principles of double jeopardy to have been joined with the charge in the earlier indictment; and (v) therefore, the current charge likewise must be dismissed.

 There are two weak links in that chain of reasoning. First, the earlier indictment is not subject to dismissal with prejudice as to Abouhalima because a substantial part of the trial itself constituted the hearing on Abouhalima's motion to dismiss based on alleged government misconduct. Second, even if the earlier indictment were to be dismissed with prejudice as to Abouhalima, the current charge is not one required by double jeopardy principles to have been joined in the earlier indictment, and accordingly the current charge need not be dismissed.

 As noted above, the reason for postponing a hearing, if it was necessary, on Abouhalima's motion to dismiss the earlier indictment for outrageous government misconduct was not simply a matter of the court's convenience. Rather, the court, and probably everyone else involved, anticipated -- correctly -- that many of the facts underlying the motion would be explored at trial, whether in connection with conventional entrapment defenses or in the course of developing credibility issues relating to Salem and government agents. In addition, certain limited factual issues were developed further after trial. It would have been enormously wasteful to have held a hearing before trial on Abouhalima's motion not only because such a hearing would have duplicated much of the testimony given at trial, but also because any ruling in the government's favor before trial necessarily would have been tentative and provisional, subject to what further facts might be developed at or after trial. Therefore, this case is unlike United States v. Gambino, 59 F.3d 353 (2d Cir. 1995), cert. denied, 134 L. Ed. 2d 776, 116 S. Ct. 1671 (1996), where, although a trial court's failure to dismiss an indictment was held ultimately to be harmless error, 59 F.3d at 362-63, the Court found that the postponement of a Kastigar hearing until after trial meant that the motion "no longer consumed the court's time and attention" and that the motion had "in effect been tabled," id. at 359. Therefore, the Court held, the time until after trial was not excludable from the Speedy Trial Act's 70-day limitation. Id. Here, facts were being developed during the trial itself that were relevant to the motion, and in any event, no definitive ruling in the government's favor would have been possible until after the trial, regardless of whether a hearing was held before trial. In these circumstances, although Abouhalima's motion was not a constant preoccupation throughout the trial, neither was it "in effect tabled."

 The government concedes that even excluding the time until January 10, 1996, when I denied Abouhalima's motion in open court, the Speedy Trial Act clock ran on April 19, 1996, and 174 days ran on the Speedy Trial Act clock total until the September 18, 1996 arrest, 104 more than the 70 permitted by the statute. (Gov't. Mem. at 5) *fn1" To determine whether an indictment should be dismissed with or without prejudice, the statute directs that the court consider "the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice." 18 U.S.C. § 3162(a)(2). Abouhalima argues -- "assumes" would be more accurate -- that it is the offense in the current indictment that is relevant to the seriousness analysis, apparently because that is the charge he is now moving to dismiss. The government does not assert otherwise, but it seems at least arguable that Abouhalima's Speedy Trial Act argument depends on whether the initial indictment, in which he was charged with seditious conspiracy, must be dismissed with prejudice, because if not, then any Speedy Trial Act issue relating to the current charge would not be reached. In any event, seditious conspiracy is among the most serious charges known to the law. Acting as an accessory after the fact is, by comparison, a bagatelle, and Abouhalima so treats it in his brief (Abouhalima Mem. at 34-35); but only by comparison, because the fact after which Mohammed Abouhalima is alleged to have acted as an accessory is the bombing of the World Trade Center that resulted in six deaths, hundreds of injuries, and tens of millions of dollars in damage; he faces a sentence of 15 years if convicted. 18 U.S.C. § 3 (1994). The charges in both indictments are serious.

 The circumstances of the case that led to dismissal include a stipulated severance following denial of Abouhalima's motion for a severance. A reprosecution of Abouhalima in such circumstances would not have compromised the goals of the Speedy Trial Act because the amount of time elapsed beyond the deadline -- 104 days -- was not substantial, see United States v. Kiszewski, 877 F.2d 210, 214 (2d Cir. 1989) (130 days "not minor" but insufficient to justify dismissal with prejudice), and Abouhalima has made no showing of suspect government conduct *fn2" , a pattern of delay in this district, or prejudice to his case. For those reasons, any dismissal of the earlier indictment would have been without prejudice. The analysis under this District's Plan for Prompt ...

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