(the "Plan") is the same. The Plan does not require the dismissal of any case "in circumstances in which such action would not be required by 18 U.S.C. §§ 3162 and 3164." Plan P 10(a).
Even if the previous indictment were required to be dismissed with prejudice, Abouhalima concedes that the Speedy Trial Act clock begins to run anew with the filing of a new indictment that contains a different charge. He argues, however, that the charge in the current indictment -- acting as an accessory after the fact to the World Trade Center bombing principally by driving one of the perpetrators, defendant's brother, to the airport to help him escape -- is included within the seditious conspiracy charge contained in the earlier indictment, and therefore should have been joined with it for double jeopardy purposes. Therefore, he argues, the new indictment too is subject to dismissal.
To support his claim that the charge in the current indictment -- acting as an accessory after the fact to the World Trade Center bombing -- should have been included for double jeopardy purposes in the earlier indictment -- which charged Abouhalima with participating in a seditious conspiracy that included the World Trade Center bombing as one of its objects -- Abouhalima relies principally on Whalen v. United States, 445 U.S. 684, 63 L. Ed. 2d 715, 100 S. Ct. 1432 (1980) and United States v. Seda, 978 F.2d 779 (2d Cir. 1992). Neither case dealt with either offense at issue here, and neither supports the result Abouhalima seeks here.
In Whalen, the Court held that cumulative punishments could not be imposed for rape and felony murder when the felony underlying the murder conviction was the rape because "[a] conviction for killing in the course of a rape cannot be had without proving all the elements of the offense of rape." 445 U.S. at 693-94. The Court noted that felony murder in the large certainly does not always require proof of rape, and thus cumulative punishments would not literally fail the familiar Blockburger test, which provides that double jeopardy is not present if one statute requires the proof of an element that the other does not. Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932). However, the Court held that in the case before it the felony murder charge did require proof of every element of the rape, and therefore double jeopardy principles were offended by successive punishments.
In Seda, the Court of Appeals upheld the trial court's direction that the government choose between counts of an indictment found to be multiplicitous because it charged both bank fraud and submission of false statements in loan applications to a bank. The Court held that, "the false loan applications are simply a species of bank fraud, just as the killing of the rape victim in Whalen was a species of felony murder." 978 F.2d at 782.
In the case at bar, acting as an accessory after the fact, even to a seditious crime, is not necessarily a species of seditious conduct, nor does seditious conduct, even on the facts charged here, necessarily involve acting as an accessory after the fact. In order to prove that Mohammed Abouhalima acted as an accessory after the fact to the World Trade Center bombing, the government need prove only that he drove Mahmoud Abouhalima, his brother, to the airport, and provided whatever other after-the-fact help the government may be able to prove, in order to help Mahmoud escape prosecution for that crime. The government need not prove that Mohammed Abouhalima agreed to further additional seditious conduct, as would be required to convict on the seditious conspiracy charge, notwithstanding that escape would render Mahmoud available for more such conduct should he choose to engage in it. That the government might prove both crimes in part with proof of the same act is irrelevant because the act itself -- driving Mahmoud to the airport -- is not a crime standing alone. Rather, the presence or absence of a crime, and what crime is present, turns completely on the intent with which the act is done. Indeed, if the government could prove that Mohammed Abouhalima drove Mahmoud to the airport not for the purpose of escape but rather for the purpose of carrying out a suicide bombing, that could prove the crime of seditious conspiracy without also proving the crime of acting as an accessory after the fact, Mahmoud's escape from prosecution being both moot in view of Mahmoud's hypothesized goal and irrelevant to Mohammed's hypothesized goal.
Because the crime charged in the current indictment need not have been charged in the earlier indictment for double jeopardy purposes, even if the earlier indictment were to be dismissed with prejudice, such dismissal would not compel dismissal of the current indictment.
Defendant asserts also that the government violated his right to a speedy trial under the Sixth Amendment. "Under Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the four factors to be considered in determining whether there has been a deprivation of defendant's constitutional right to a speedy trial are: (1) the length of the delay; (2) the reason for the delay; (3) defendant's assertion of his right; and (4) the prejudice to the defendant." United States v. Vasquez, 918 F.2d 329, 337-38 (2d Cir. 1990). Here, as discussed above, the moderate delay and the legitimate reason for the much of the delay, albeit not all of it, weigh against a violation. Moreover, the third and fourth factors do not weigh in favor of a violation: defendant waited many months before raising Sixth Amendment objections and he was enlarged, albeit on bail, throughout. Therefore, defendant's Sixth Amendment claim must be rejected.
* * *
Accordingly, defendant's motion to dismiss the indictment is denied.
Michael B. Mukasey,
U.S. District Judge
Dated: New York, New York
April 16, 1997