their motions, but also that they have failed to show that they
were denied the effective assistance of counsel guaranteed by the
As set forth in full below, the Defendants' motions are denied
in their entirety.
On March 4, 1994, after a six month trial, Mahmoud Abouhalima,
Ahmad Ajaj, Nidal Ayyad and Mohammad Salameh were found guilty of
charges arising from the conspiracy that led to the bombing of
the World Trade Center.
The evidence at trial demonstrated that each of them played an
important part in ensuring the success of the conspiracy. A brief
overview of that evidence is set forth below.
I. The Evidence at Trial
A. Ahmad Mohammad Ajaj
The evidence against defendant Ajaj demonstrated that, in April
1992, he left his home in Houston, Texas and traveled to the
Middle East where he obtained a letter of introduction to a
terrorist training camp. While in the Middle East, Ajaj made
contact with Ramzi Yousef, and the two plotted to enter the
United States illegally.
On September 1, 1992, Ajaj and Yousef traveled together to John
F. Kennedy International Airport in New York ("Kennedy Airport")
under assumed names and using falsified passports. In his
luggage, Ajaj carried a variety of "terrorist" materials
including videotapes advocating terrorist action against the
United States, manuals describing how to mount a successful
terrorist operation and manuals containing formulas and
directions for constructing various explosive devices, including
the type of device used in the World Trade Center bombing.
Upon their arrival at Kennedy Airport, Ajaj and Yousef sought
to pass through customs separately, and each indicated to
Immigration and Naturalization Service ("INS") inspectors that he
was traveling alone. Yousef was permitted to enter the country,
but Ajaj was not so lucky. INS inspectors recognized that Ajaj's
passport was a forgery, and he was detained. Ajaj's luggage was
seized, and he was placed under arrest and charged in the Eastern
District of New York with passport fraud. He pleaded guilty and
was sentenced to six months imprisonment.
Although Ajaj remained incarcerated from the time he and Yousef
arrived in the United States until the bombing of the World Trade
Center, he continued to play an active role in the conspiracy. He
not only kept in contact with Yousef from prison to remain
abreast of the conspirators' activities, but when the court in
the Eastern District of New York ordered the return of his
luggage, he attempted to ensure that the terrorist materials were
forwarded to Yousef.
B. Mohammad Salameh
Once in the United States, Yousef assembled a group of
conspirators. Perhaps the most active of them was defendant
Salameh. Together, Salameh and Yousef rented a storage unit and
an apartment to manufacture the bomb components.
At the storage unit, Salameh kept chemicals such as urea
nitrate and the components of nitroglycerine, as well as
explosive materials such as hydrogen tanks intended to enhance
the destructive power of the bomb. At the apartment, located at
40 Pamrapo Avenue in Jersey City, New Jersey, the government
discovered traces of urea nitrate and nitroglycerine
demonstrating that the conspirators used the apartment to mix the
chemicals. In essence, the apartment served as a "bomb factory".
With defendant Ayyad, Salameh also rented a Ryder van to
transport the bomb
to the World Trade Center.*fn2 Numerous parts of the van were
found at the World Trade Center after the bombing, as were pieces
of several of the hydrogen tanks delivered to the storage unit.
Although Salameh intended to flee the country after the bombing,
he was arrested the day before his planned departure when he
returned to the Ryder rental office and sought reimbursement of
his $400 rental deposit.
C. Mahmoud Abouhalima
Defendant Abouhalima played many roles in the conspiracy. In
particular, he helped Salameh and Yousef obtain an apartment and
build the bomb. In the weeks prior to the bombing, Abouhalima
made frequent trips to 40 Pamrapo Avenue and was spotted numerous
times moving various items, including large barrels, in and out
of the bomb factory. Abouhalima also helped mix chemicals inside
the bomb factory, a fact evidenced by chemical burn marks found
on his shoes that were consistent with chemicals found in the
Abouhalima also further assisted the conspiracy by providing
(1) a telephone calling card that the conspirators used to
contact each other as well as suppliers of components for the
bomb, (2) a refrigerator for the bomb factory that was used to
store chemicals such as nitro-glycerine and (3) a sixteen ounce
can of smokeless powder — an important ingredient for the type of
bomb used by the conspirators.*fn3
After the explosion, Abouhalima fled the United States and was
eventually captured by Egyptian authorities in Egypt.
D. Nidal Ayyad
Defendant Ayyad was involved in the conspiracy in a few
important ways. In particular, Ayyad used his position as a
chemical engineer with Allied Signal Corporation to obtain
chemical ingredients for the bomb and hydrogen tanks to enhance
its destructive power. With defendant Salameh, Ayyad opened a
joint bank account to deposit the funds that financed the bombing
Ayyad was also the spokesman for the conspirators. DNA test
results concluded that Ayyad's saliva matched that recovered from
a sealed envelope mailed to the New York Times. The letter inside
the envelope claimed responsibility for the explosion, and a
computer disk retrieval expert testified that she found a draft
of the letter in her review of computer disks seized from Ayyad's
office. Also, witnesses identified Ayyad's voice as that
contained on the recording of a call to the New York Daily News
claiming responsibility for the explosion.
II. The Rule 33 Motions
In its decision affirming the Defendants' convictions, the
United States Court of Appeals for the Second Circuit remanded
the Defendants' post-trial claims to this court for adjudication.
Salameh, 152 F.3d at 159-61. Accordingly, I held a hearing
during the weeks of February 22, 1999 and March 1, 1999 to decide
the issues raised ("Hearing").*fn4
All four Defendants seek a new trial based on a claim of newly
discovered evidence of government misconduct in connection
with allegedly false scientific testimony offered by the
government at trial. In addition, defendants Abouhalima and Ajaj
seek a new trial based on separate claims of ineffective
assistance of counsel and newly discovered evidence. Defendant
Ayyad forwards an independent ineffective assistance of counsel
This opinion constitutes my decision as to all the Defendants'
Rule 33 of the Federal Rules of Criminal Procedure provides
that a district court "may grant a new trial to [a] defendant if
the interests of justice so require." Fed.R.Crim.P. 33. The law
is well settled, however, that Rule 33 motions are "not favored".
See United States v. Spencer, 4 F.3d 115, 118 (2d Cir. 1993).
Courts are encouraged to exercise "great caution" and to grant
the motion only "in the most extraordinary of circumstances".
Id. (citations omitted). See also United States v. Locascio,
6 F.3d 924, 949 (2d Cir. 1993), cert. denied, 511 U.S. 1070,
114 S.Ct. 1645, 128 L.Ed.2d 365 (1994); United States v.
Costello, 255 F.2d 876, 879 (2d Cir. 1958).
In Rule 33 proceedings, the burden falls squarely on the
defendant to demonstrate that a new trial is warranted. See,
e.g., United States v. Sasso, 59 F.3d 341, 350 (2d Cir. 1995);
United States v. Moore, 54 F.3d 92, 99-100 (2d Cir. 1995);
Spencer, 4 F.3d at 119; United States v. Imran,
964 F.2d 1313, 1318 (2d Cir. 1992). Moreover, the decision of whether to
permit discovery and conduct an evidentiary hearing remains
within the sound discretion of the trial court. United States v.
White, 972 F.2d 16, 22 (2d. Cir.), cert. denied,
506 U.S. 1026, 113 S.Ct. 669, 121 L.Ed.2d 593 (1992); United States v.
Agunbiade, No. 90-CR-610(S)-02 (JRB), 1995 WL 351058 (E.D.N Y
May 10, 1995), aff'd by, United States v. Osinowo,
100 F.3d 942, 1996 WL 20514 (2d Cir. 1996). If the moving papers
themselves disclose the inadequacies of the defendant's case and
the opportunity to present live witnesses would clearly be
unavailing, the court may rest its decision solely on the basis
of the affidavits and memoranda submitted and need not resort to
an evidentiary hearing. See United States v. Helmsley,
985 F.2d 1202, 1210 (2d Cir. 1993) (quoting United States v. Slutsky,
514 F.2d 1222, 1226 (2d Cir. 1975)).
The only ground for a new trial expressly stated in Rule 33 is
"newly discovered evidence". Fed.R.Crim.P. 33. To obtain a new
trial based on newly discovered evidence, a defendant must show
that the evidence (1) was discovered after trial, (2) could not
have been discovered before or during trial through the exercise
of due diligence, (3) is material, non-cumulative and not merely
impeaching, and (4) if admitted, "would probably lead to an
acquittal." Locascio, 6 F.3d at 949 (quoting United States v.
Gilbert, 668 F.2d 94, 96 (2d Cir. 1981), cert. denied,
456 U.S. 946, 102 S.Ct. 2014, 72 L.Ed.2d 469 (1982)). See also
Spencer, 4 F.3d at 119 (citations omitted); United States v.
Cruz, 602 F. Supp. 825, 828-29 (S.D.N.Y. 1985).
While not expressly stated in the rule, a defendant may also
seek a new trial pursuant to Rule 33 based on a claim of
ineffective assistance of counsel. See United States v. Muyet,
994 F. Supp. 550, 558-62 (S.D.N.Y. 1998). The inquiry into whether
a criminal defendant's legal representation was so deficient that
it violated the Sixth Amendment to the United States Constitution
is also well-settled. U.S. Const. amend VI. A defendant must (1)
show that counsel's performance fell below "an objective standard
of reasonableness" under "prevailing professional norms," and (2)
"affirmatively prove prejudice" by demonstrating "that there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 687-94, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984).
With respect to the first inquiry, judicial scrutiny of
counsel's performance must be "highly deferential". Id. at 689,
104 S.Ct. 2052. A defendant must overcome strong presumptions
regarding his attorney's performance. Id. at 690, 104 S.Ct.
2052. In order to challenge strategic decisions made by counsel,
a defendant faces a difficult burden:
[S]trategic choices made after thorough investigation
of law and facts relevant to plausible options are
virtually unchallengeable; and strategic choices made
after less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation.
Id. at 690-91, 104 S.Ct. 2052.
The court should consider the defendant's communications with
The reasonableness of counsel's actions may be
determined or substantially influenced by the
defendant's own statements or actions. Counsel's
actions are usually based, quite properly, on
informed strategic choices made by the defendant and
on information supplied by the defendant. In
particular, what investigation decisions are
reasonable depends critically on such information.
For example, when the facts that support a certain
potential line of defense are generally known to
counsel because of what the defendant has said, the
need for further investigation may be considerably
diminished or eliminated altogether. And when a
defendant has given counsel reason to believe that
pursuing certain investigations would be fruitless or
even harmful, counsel's failure to pursue those
investigations may not later be challenged as
Id. at 691, 104 S.Ct. 2052 (emphasis added).
With respect to the second inquiry, the prejudice inquiry, "a
court hearing an ineffectiveness claim must consider the totality
of the evidence" and determine whether, after finding attorney
error, the error "had a pervasive effect on the inferences to be
drawn from the evidence, altering the entire evidentiary picture
. . . [or] had an isolated, trivial effect." Id. at 695-96, 104
S.Ct. 2052. Here, the court is concerned with whether "the result
of the particular proceeding is unreliable because of a breakdown
in the adversarial process that our system counts on to produce
just results." Id. at 696, 104 S.Ct. 2052. See also Kimmelman
v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574, 91 L.Ed.2d 305
(1986) ("The essence of an ineffective-assistance claim is that
counsel's unprofessional errors so upset the adversarial balance
between defense and prosecution that the trial was rendered
unfair and the verdict rendered suspect."); Lockhart v.
Fretwell, 506 U.S. 364, 369-70, 113 S.Ct. 838, 122 L.Ed.2d 180
(1993) (focus is not only on outcome of the trial, but also on
whether proceeding was fundamentally unfair or unreliable).
In its opinion affirming the Defendants' convictions, the
Second Circuit remanded Nidal Ayyad's claims of ineffective
assistance of counsel for my consideration. Salameh, 152 F.3d
at 161. Because Ayyad's claims were not the subject of a
post-trial Rule 33 motion, and he advances no independent claims
of newly discovered evidence, his claims can be considered solely
on the basis of the record.*fn5
At trial, Ayyad was represented by Atiq Ahmed, Esq., a member
of both the Maryland and Virginia bars admitted pro hac vice to
this court. On appeal, he was initially represented by Jeremy
Schneider, Esq., but a conflict of interest arose when Ayyad
filed a grievance against Mr. Schneider with the disciplinary
of the Appellate Division. Accordingly, Mr. Schneider was
relieved as Ayyad's counsel on February 22, 1999. Hearing Tr. at
6. He was replaced by Francisco Celedonio, Esq.
In support of his present claim for relief, Ayyad raises
several claims of ineffective assistance of counsel.*fn6
I. Trial Counsel's Lack of Federal Criminal Practice
Ayyad alleges that he received ineffective assistance of
counsel because Attorney Ahmed lacked experience practicing
criminal law in federal court, particularly in the Southern
District of New York. He offers no support for this proposition,
however, and provided no evidence to bolster this claim.
In any event, there is no basis for the assertion that an
attorney's assistance is ineffective merely because he has no
prior experience in a particular district or in a particular area
of law. The argument would have one conclude that every "first"
trial is perpetrated by an incompetent, a position this court is
unwilling to accept. The test is whether Attorney Ahmed provided
objectively reasonable counsel such that the verdict against
Ayyad can be viewed as reliable. See Strickland, 466 U.S. at
687-88, 694, 104 S.Ct. 2052; Lockhart, 506 U.S. at 369-70, 113
S.Ct. 838. There is no basis whatsoever that Attorney Ahmed's
lack of experience with criminal cases in the Southern District
of New York in any way affected his ability to provide
objectively reasonable counsel in this case.
II. Trial Counsel's Failure to Consult or Retain Various
Ayyad also argues that Attorney Ahmed provided ineffective
assistance of counsel in failing to consult or retain experts to
analyze numerous scientific reports generated by the government's