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U.S. v. SALAMEH

June 21, 1999

UNITED STATES OF AMERICA
v.
MOHAMMAD SALAMEH, A/K/A "KAMAL IBRAHAM," NIDAL AYYAD, MAHMOUD ABOUHALIMA, AND AHMAD MOHAMMAD AJAJ, A/K/A "KHURRAM KHAN," DEFENDANTS.



The opinion of the court was delivered by: Duffy, District Judge.

            OPINION

TABLE OF CONTENTS

  FACTUAL BACKGROUND ................................................................... 246
    I. The Evidence at Trial ........................................................... 246
       A. Ahmad Mohammad Ajaj .......................................................... 246
       B. Mohammad Salameh ............................................................. 246
       C. Mahmoud Abouhalima ........................................................... 247
       D. Nidal Ayyad .................................................................. 247
   II. The Rule 33 Motions ............................................................. 247
  DISCUSSION ........................................................................... 248
  AYYAD'S CLAIMS ....................................................................... 249
    I. Trial Counsel's Lack of Federal Criminal Practice Experience .................... 250
   II. Trial Counsel's Failure to Consult or Retain Various Expert Witnesses ........... 250
 
  III. Trial Counsel's Alleged Ineffective Motion Practice and Preparation for Defense
       Case............................................................................. 252
   IV. Trial Counsel's Alleged Ineffective Trial Conduct ............................... 253
       A. The In-Court Identification .................................................. 253
       B. Cross-Examination ............................................................ 253
       C. Summation .................................................................... 254
  ABOUHALIMA'S MOTION .................................................................. 255
    I. Allegations of Newly Discovered Evidence of False Trial Testimony by Special
       Agent David Williams ............................................................ 255
       A. Overview of Dr. Frederic Whitehurst's Hearing Testimony and the Inspector
          General's Report ............................................................. 257
          1. Whitehurst's Background and Initial Involvement in the World Trade
             Center Investigation ...................................................... 257
          2. Whitehurst's Concerns Regarding the Urea Nitrate Theory ................... 257
          3. Whitehurst's Disagreements with His Superiors ............................. 258
             a. The April Report ....................................................... 258
             b. The Attempt to Alter Whitehurst's Dictation ............................ 258
             c. The July Report ........................................................ 259
          4. The Haldimann Episode ..................................................... 259
          5. Criticisms of Williams' Testimony ......................................... 260
             a. Criticisms of Williams' Testimony Contained in the Inspect or
                General's Report ....................................................... 260
       B. Abouhalima's Legal Claims..................................................... 261
          1. Interests of Justice ...................................................... 261
          2. Alleged Newly Discovered Evidence of Perjured Testimony ................... 261
             a Evidence that Williams Perjured Himself and the Prosecution's
               Alleged Knowledge Thereof ............................................... 262
             b. Independent Evidence of the Defendants' Guilt .......................... 262
   II. Abouhalima's Ineffective Assistance of Counsel Claims............................ 263
       A. Trial Counsel's Failure to Argue American Involvement in Abouhalima's
          Alleged Torture in Egypt ..................................................... 263
          1. Abouhalima's Affidavit .................................................... 265
          2. The "Salem Tapes" ......................................................... 266
             a. Salem's Alleged "Double-Agent" Status .................................. 268
             b. Salem's Alleged Knowledge of Abouhalima's Travels, Arrest and
                Incarceration in Egypt ................................................. 269
             c. The FBI's Alleged Knowledge of Abouhalima's Whereabouts and
                Effort ................................................................. 273
       B. Trial Counsel's Failure to Move for Suppression of Evidence Seized from
          Abouhalima's Apartment ....................................................... 275
          1. Issuance of the Search Warrant ............................................ 275
          2. Lack of Probable Cause .................................................... 276
          3. Overbroad Execution ....................................................... 277
       C. Alleged Violations of the Vienna Convention .................................. 278
  III. Abouhalima's Newly Discovered Evidence Claims ................................... 280
       A. Co-Conspirators' Post-Arrest Statements ...................................... 280
       B. Photographs of Abouhalima Revealing His Alleged Torture ...................... 284
          1. The Airplane Photos ....................................................... 284
          2. The MCC Photos ............................................................ 285
  AJAJ'S MOTION ........................................................................ 285
    I. Alleged Newly Discovered Evidence Regarding Ajaj's Departure to Pakistan ........ 287
       A. Summary of the Evidence at Trial ............................................. 287
       B. The Alleged Newly Discovered Evidence ........................................ 287
          1. Ajaj's Work in University Services ........................................ 287
          2. Ajaj's Conflict with Militant Muslims ..................................... 289
          3. Ajaj's Departure to Pakistan .............................................. 290
   II. Alleged Newly Discovered Evidence Regarding Ajaj's Activities in Pakistan ....... 290
       A. Summary of the Evidence at Trial ............................................. 290
       B. The Alleged Newly Discovered Evidence ........................................ 291
          1. Witnesses Regarding Ajaj's Work in University Services .................... 291
          2. The Stamps in Ajaj's Passport ............................................. 292
 
          3. Ajaj's Alleged Innocent Efforts to Return to the United States ............ 293
  III. Alleged Newly Discovered Evidence Regarding Ajaj's Return to the United
       States .......................................................................... 294
       A. Summary of the Evidence at Trial ............................................. 294
       B. The Alleged Newly Discovered Evidence ........................................ 294
   IV. Alleged Newly Discovered Evidence Regarding The Luggage Ajaj Carried into
       the United States ............................................................... 295
       A. Summary of the Evidence at Trial ............................................. 295
       B. The Alleged Newly Discovered Evidence ........................................ 295
          1. Yasin Bazayah's Alleged Ownership of the Incriminating Materials .......... 296
          2. The Handwriting on the Bomb Manuals Allegedly Did Not Belong to
             Ajaj ...................................................................... 297
             a. The Argument Lacks Legal Merit ......................................... 297
             b. Defense Counsel Has Knowingly Advanced a Frivolous Claim and
                Made False Representations to the Court Pertaining to Trial
                Counsel's Conduct ...................................................... 298
          3. The Government's Evidence With Respect to the Letter of Introduction
             to the Terrorist Camp ..................................................... 300
    V. Alleged Newly Discovered Evidence Regarding Ajaj's Contacts with Ramzi
       Yousef .......................................................................... 301
       A. Summary of the Evidence at Trial ............................................. 301
       B. The Alleged Newly Discovered Evidence ........................................ 301
   VI. Newly Discovered Evidence Regarding The Co-Conspirators' Alleged Lack of
       Knowledge of Ajaj ............................................................... 302
  VII. Miscellaneous Allegations ....................................................... 302
       A. The Testimony of Mohammad Nabil Elmasry ...................................... 302
       B. Trial Counsel's Alleged Failure to Argue and Request a Jury Charge that
          Ajaj Abandoned or Withdrew from the Conspiracy ............................... 303
       C. Post-Hearing Letters and Requests ............................................ 304
VIII. Comment ......................................................................... 304
  CONCLUSION ............................................................................ 305

On February 26, 1993, a bomb exploded in the parking garage beneath the World Trade Center in lower Manhattan killing six, injuring hundreds, and causing millions of dollars in damage. Since that time, two trials have been held before me and six men have been convicted for their roles in the bombing.

The earlier of the two trials took place in 1993 and 1994 and resulted in the convictions of four men — Mahmoud Abouhalima, Ahmad Mohammad Ajaj, Nidal Ayyad and Mohammad Salameh (collectively, "Defendants").*fn1 On August 4, 1998, the United States Court of Appeals for the Second Circuit affirmed the Defendants' convictions, and on January 19, 1999, defendant Abouhalima's petition for certiorari to the United States Supreme Court was denied. U.S. v. Salameh, 152 F.3d 88, 124-26 (2d Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 885, 142 L.Ed.2d 785 (1999).

Currently before the court are the Defendants' motions pursuant to Rule 33 of the Federal Rules of Criminal Procedure and claims remanded by the Court of Appeals. In these motions and claims, the Defendants seek new trials on grounds of newly discovered evidence and ineffective assistance of counsel.

After a hearing and a careful review of both the record at trial and the voluminous submissions by the Defendants, I am convinced that the Defendants received an extraordinarily fair trial and were convicted on the basis of overwhelming evidence of their guilt. It is clear not only that the Defendants have failed to come forward with any newly discovered evidence to support their motions, but also that they have failed to show that they were denied the effective assistance of counsel guaranteed by the Sixth Amendment.

As set forth in full below, the Defendants' motions are denied in their entirety.

FACTUAL BACKGROUND

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 storage unit.

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 plot.

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

This opinion constitutes my decision as to all the Defendants' claims.

DISCUSSION

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 counsel:

  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
  unreasonable.

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).

AYYAD'S CLAIMS

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 committee 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
  Experience

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
    Expert Witnesses

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 expert witnesses.

On January 28, 1994, during the fourth month of trial, Attorney Ahmed did seek funds for the retainer of a DNA analyst, a linguistics expert, an explosives expert, a computer expert and a sociologist. The court allowed Ayyad $35,000 in Criminal Justice Act ("CJA") funds for such purposes. See 18 U.S.C. § 3006A(e)(1) (1985 & Supp. 1999) ("Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application."). Attorney Ahmed did not seek a continuance or eventually call any such witnesses, however.

He further argues that a voice analysis expert would have challenged the government's voice identification testimony confirming that Ayyad's voice was the same as that tape recorded on the call to the New York Daily News claiming responsibility for the bombing.

As detailed below, the arguments raised by Ayyad on this point are absolutely of no avail to him. Argument (1) above suggests, in part, that although Ayyad was likely to have sealed the envelope containing the letter claiming responsibility for the bombing, he did not put a stamp on the envelope. There is an obvious explanation with respect to the stamp, however; it was self-adhesive. In light of the strength of the government's evidence and the facts at trial, Attorney Ahmed's decision not to seek the testimony of a DNA expert on this matter was entirely within the range of reasonable competent assistance*fn7 and not a basis for a finding of prejudice. See also Appendix A, filed herewith under seal.

Argument (2) also lacks merit. It suggests that Attorney Ahmed's failure to seek testimony from a linguistics expert about Ajaj's writing skills should cause this court to question its confidence in Ayyad's verdict. The proposed testimony, however, is both immaterial and speculative and would not have been admitted into evidence. As such, Argument (2) provides no basis for a finding of ineffective assistance of counsel. See also Appendix A, filed herewith under seal.

Argument (3) meets a similar fate. As it turned out, the explosives expert hired by the defense herein actually testified in the second World Trade Center bombing trial — the trial of Ramzi Yousef and Eyad Ismoil — and concluded that the damage to the World Trade Center was caused by a bomb. Ramzi Yousef, the mastermind behind the bombing, also subsequently admitted in his post-arrest statement to the bomb's manufacture by the conspirators. There is simply no basis for Ayyad's argument that he suffered ineffective assistance of counsel in failing to call an explosives expert. See also, Appendix A, filed herewith under seal.

Argument (4) lacks merit because in substantial part, it suggests that Attorney Ahmed should have hired an expert to testify that information can be placed on a computer disk absent the owner's knowledge. Attorney Ahmed, however, was free to obtain the admission of this information from the government's own expert. Whether he would have been able to do so, the failure to elicit this evidence before the jury does not cause me to question my confidence in the verdict against Ayyad. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Argument (5) suggests that this court would have permitted testimony from a sociologist that as a member of the Arab community, Ayyad's inculpatory activities were mere favors for his friends. Whether I would have admitted this questionably relevant and speculative testimony, the argument underlying this claim — Ayyad's supposed innocent favors for his friends — was actually raised by Attorney Ahmed in his summation. See generally Trial Tr. at 8633-8725. As such, there is no basis to find ineffective assistance of counsel on this issue. See also Appendix A, filed herewith under seal.

Lastly, Ayyad's suggestion that a voice analysis expert should have been called by Attorney Ahmed ignores the fact that witnesses who were knowledgeable about Ayyad's voice identified it as his on the call to the New York Daily News. See Fed.R.Evid. 701 (opinion testimony by lay witnesses). Attorney Ahmed may have been aware of the fact that an expert witness would only have confirmed the lay witnesses' testimony. He may well have known at the time that it was Ayyad's voice on telephone. See generally Appendix A, filed herewith under seal.

In short, I find that Attorney Ahmed's failure to seek the testimony of any of these witnesses was a decision well within "the wide range of professionally competent assistance." Strickland, 466 U.S. at 690, 104 S.Ct. 2052. See also United States ex rel. Walker v. Henderson, 492 F.2d 1311, 1314 (2d Cir.), cert. denied, 417 U.S. 972, 94 S.Ct. 3179, 41 L.Ed.2d 1144 (1974) ("[T]he decision to call or bypass particular witnesses is peculiarly a question of trial strategy, . . . which courts will practically never second-guess."). Instead of seeking the testimony of these witnesses, the record at trial reflects that Attorney Ahmed sought to cross-examine the damaging government testimony and utilize information obtained through cross-examination to make his summation on behalf of Ayyad.

"[C]ounsel's function . . . is to make the adversarial testing process work in the particular case." Strickland, 466 U.S. at 690, 104 S.Ct. 2052. Ayyad has made no showing that Attorney Ahmed failed to do so here. Attorney Ahmed's failure to consult or retain the expert witnesses certainly does not call into question my confidence in the reliability of the verdict against Ayyad. Id. at 694, 104 S.Ct. 2052.

III. Trial Counsel's Alleged Ineffective Motion Practice and
    Preparation for Defense Case

Ayyad also argues that Attorney Ahmed's pre-trial motions were legally and factually deficient and left the court without a clear understanding of the relief sought.

Attorney Ahmed made motions on behalf of Ayyad for the following: (1) inspection of the grand jury minutes; (2) dismissal of the indictment; (3) disclosure and exclusion of evidence of "other acts"; (4) general pre-trial discovery; (5) change of venue; (6) disclosure of a list of jurors and potential witnesses; (7) disclosure of inducements, threats, promises, or payments to government witnesses; (8) a bill of particulars; (9) severance of Ayyad's trial; (10) suppression of identification; (11) suppression of a statement made by Ayyad;*fn8 and (12) suppression of items seized from Ayyad's home.*fn9 For various reasons, these motions were all denied.

Ayyad has failed to show that Attorney Ahmed's motion practice violated his Sixth Amendment right to effective assistance of counsel. While his motions may have been denied, their denial alone provides insufficient evidence to find that they were filed in error or otherwise outside the range of competent professional assistance. Overall, they reflected the efforts of reasonable, diligent counsel. See, e.g., United States v. Nersesian, 824 F.2d 1294, 1321-22 (2d Cir. 1987) (rejecting claim that counsel was ineffective because motion practice not "adequate" or "zealously pursued" or that a motion failed to raise a certain argument).

In any event, to the extent any of the individual motions left Ayyad's request for relief unclear or to the extent Attorney Ahmed failed to make any additional motions, Ayyad has not demonstrated that any prejudice resulted. He has not shown that "but for" Attorney Ahmed's unprofessional errors in his motion practice, "there is a reasonable probability that the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052. See also Nersesian, 824 F.2d at 1322 ("not every possible motion need be filed . . . only those having a solid foundation"); United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) ("the failure to make a meritless argument does not rise to the level of ineffective assistance"). If anything, Attorney Ahmed's diligent efforts to seek relief through the numerous pre-trial motions listed above reflected a zealous and vigorous challenge to the government's proof against Ayyad.

IV. Trial Counsel's Alleged Ineffective Trial Conduct

Ayyad also attacks Attorney Ahmed's performance at trial, a trial in which Attorney Ahmed faced overwhelming evidence of Ayyad's guilt.

A. The In-Court Identification

Ayyad argues that he received ineffective assistance of counsel because after a Ryder employee testified that he rented a van to Salameh and another person, Attorney Ahmed asked the employee, who had not previously identified Ayyad, if he would recognize that other person if he saw him. The employee then identified Ayyad as the man who rented the van with Salameh.

Although in hindsight, the identification in response to Attorney Ahmed's question was damaging to Ayyad's defense, the question displayed an objectively reasonable trial strategy. Up until trial, the Ryder employee was unable to identify the other man that rented the van with Salameh. Through his question, Attorney Ahmed thus chose to take a tactical risk — a risk that the employee's continued failure to identify Ayyad in front of the jury would benefit Ayyad's defense. Because Attorney Ahmed had a legitimate basis for the inquiry, his cross-examination must be found objectively reasonable. The fact that the witness responded unexpectedly does not give validity to Ayyad's claim of ineffective assistance of counsel. See also Appendix A, filed herewith under seal.

B. Cross-Examination

Ayyad argues that his trial counsel's cross-examination was "senseless and peculiar" and "either bolstered the government's case or presented contradictory defense theories". Ayyad App. Brief at 39.*fn10

First, Ayyad complains that despite overwhelming forensic evidence that a bomb caused the damage in the World Trade Center, Attorney Ahmed asked questions of witnesses intended to imply that the explosion may have resulted from material in a dental office in the building, a transformer malfunction, a gas tank from a non-existent tenant or residual gas from the cars in the parking garage. He further attempted to elicit testimony that the damage to the World Trade Center may have been caused by a fire that occurred in the building during its construction in 1970.

Ayyad argues that had his counsel conducted an appropriate pre-trial investigation, he would have realized the futility of these lines of examination.*fn11

Futile or not, Attorney Ahmed seems to have made a strategic decision that he would concede little evidence in Ayyad's defense — even the government's proof of the cause of the damage to the World Trade Center. While Ayyad's challenge implies that he thinks he would have received more effective counsel had Attorney Ahmed conceded the government's proof of cause, Attorney Ahmed's attempt to raise doubt as to this issue cannot be viewed as "outside the wide range of professionally competent assistance" or an error resulting in prejudice. Strickland, 466 U.S. at 690, 694, 104 S.Ct. 2052.

Ayyad also argues that Attorney Ahmed's cross-examination confirmed, rather than undercut, testimony that the government elicited on direct examination. None of Ayyad's arguments, however, support a finding of ineffective assistance of counsel. "Decisions whether to engage in cross-examination, and if so to what extent and in what manner, are . . . strategic in nature." Nersesian, 824 F.2d at 1321. In a trial in which there was overwhelming evidence of Ayyad's guilt, Attorney Ahmed's chosen lines of cross-examination were bound to occasionally fail to elicit the testimony expected. This does not mean that such failures were errors outside the range of reasonable and competent assistance or that they affected the reliability of the verdict against Ayyad.

C. Summation

Ayyad also challenges Attorney Ahmed's summation as a basis for his claim of ineffective assistance of counsel. He asserts that Attorney Ahmed committed error when he reminded the jury about the fact that it was him, and not the government, that elicited the in-court identification. Trial Tr. at 8637-38, 8715-16. He alleges that it was illogical for Attorney Ahmed to accuse the government of failing to ask certain questions or call certain witnesses when he could have done so himself. Id. at 8691, 8696-97.

He further argues that Attorney Ahmed committed prejudicial error in his summation when he discussed theories or testimony that had no basis in the evidence. For example, Attorney Ahmed argued that Ayyad was "framed" by the government in an effort to cover up their failure to prosecute Abdul Rahman Yasin, a fugitive co-conspirator. Id. at 8634-35. He argued that Ayyad purchased chemicals for export to the Middle East as a legitimate business matter and that Ayyad and Salameh, old family friends, opened a joint back account innocently for a new business. Id. at 8652-53, 8668, 8681. He also argued that Ayyad was out of the country getting married and on his honeymoon during much of the conspiracy and stated that Ayyad could not have made certain incriminating phone calls because "witness after witness came in and said Ayyad was abroad".*fn12 Id. at 8673, 8682-83.

In evaluating an ineffective assistance of counsel claim based on an attorney's summation, a court is required to assess the effectiveness of the summation as a whole. See United States v. Hon 17 F.3d 21, 27 (2d Cir. 1994). The alleged incompetent errors detailed above did not constitute Attorney Ahmed's entire closing argument. That argument lasted over four hours.

In his summation, Attorney Ahmed pointed out the absence of any forensic evidence tying Ayyad to the locations associated with the manufacture of the bomb. Trial Tr. at 8666, 8672, 8684. He argued that Ayyad did not understand the purpose for his purchase of the chemicals and had neither the knowledge nor the intent required to be found guilty. Id. at 8661-69, 8691-93, 8724-25. He noted that every time that Ayyad made telephone calls for chemicals, he never attempted to hide his identity. Id. at 8666, 8691.

Attorney Ahmed also noted shortcomings in the evidence that Ayyad claimed responsibility for the bombing. Namely, he argued to the jury that there was no evidence that the call to the New York Daily News was placed from Ayyad's home. Id. at 8711. Also, he noted that the government produced lay witnesses to identify Ayyad's voice on the telephone call as opposed to a voice identification expert. As Attorney Ahmed argued, the lay witnesses did not include Ayyad's secretary, the person with whom he spoke the most at work. Id. at 8696-97. Attorney Ahmed also pointed out discrepancies between the actual letter sent to the New York Times and the draft of the letter found on the computer disk seized from Ayyad's office. He noted the government's failure to test the disk seized in Ayyad's office for fingerprints. Id. at 8698-8705, 8717-19.

As such, I find that while Attorney Ahmed's summation might have failed to persuade the jury to acquit Ayyad, it was not on the whole ineffective. Attorney Ahmed's summation was, after all, part of the overall argument which kept the jury in this case deliberating for six days, even in the face of overwhelming proof of guilt.

ABOUHALIMA'S MOTION*fn13

I. Allegations of Newly Discovered Evidence of False Trial
  Testimony by Special Agent David Williams

All four Defendants have joined in Abouhalima's claim that a new trial is warranted because of the allegedly "invalid and misleading" trial testimony of FBI Supervisory Special Agent David Williams.

Williams, an examiner in the FBI Laboratory, headed the scientific investigation into the World Trade Center bombing and testified as an explosives expert for the government at trial. Williams testified as a "summary witness" — that is, as an explosives expert who based his testimony in part on the trial record that preceded his testimony.*fn14 During his testimony, which lasted nearly three days, Williams discussed a host of issues concerning the FBI Laboratory's investigation into the bombing.

Following the trial, aspects of Williams' testimony came under criticism when the Office of the Inspector General for the Department of Justice ("IG") issued a report reviewing practices in the FBI Laboratory. See The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases, United States Department of Justice, Office of the Inspector General, 93-146 (April 1997) ("IG Report"). The IG Report was instigated by allegations of improprieties at the FBI Laboratory lodged by Dr. Frederic Whitehurst. Like Williams, Whitehurst was a Supervisory Special Agent and examiner at the FBI Laboratory who assisted in the FBI's investigation into several high-profile cases, including the World Trade Center bombing. From the time he joined the FBI Laboratory in 1986, Whitehurst lodged hundreds of complaints concerning its operation.*fn15

With regard to the World Trade Center case, the IG investigated numerous allegations of wrongdoing claimed by Whitehurst. The IG concluded that the vast majority of the allegations were "meritless" or "that any error was insignificant". IG Report at 83. As to three areas of Williams' testimony, however, the IG concluded that Williams gave "inaccurate and incomplete" testimony or provided "invalid opinions that appeared tailored to the most incriminating result." Id. The three areas of testimony supported the government's theory that urea nitrate served as the main charge of the bomb constructed by the conspirators and detonated under the World Trade Center.*fn16

Abouhalima claims that the revelation of the flaws in Williams' testimony constitutes newly discovered evidence that mandates a new trial. In support of this claim, Abouhalima called Whitehurst to testify at the Hearing and offered the IG Report into evidence. Whitehurst testified about his criticisms of Williams' testimony that were subsequently adopted by the IG. Whitehurst also testified concerning his allegations that were found to be without merit by the IG, including many allegations having nothing to do with Williams' testimony.

In order to assess Abouhalima's claims, a brief overview of Whitehurst's testimony, as well the findings of the IG Report, is necessary.*fn17

  A. Overview of Dr. Frederic Whitehurst's Hearing Testimony and
    the Inspector General's Report

1. Whitehurst's Background and Initial Involvement in the World Trade Center Investigation

Whitehurst's area of expertise was "explosive residue analysis." Hearing Tr. at 163-64. Whitehurst described this field at the Hearing:

  I did residue analysis. When a bomb goes off, it
  leaves chemicals that are or can be construed to be a
  fingerprint of what the explosive was before it went
  off.

Id. at 164.

Whitehurst's involvement in the World Trade Center bombing investigation began on the day of the bombing. Hours after the attack, the FBI sent Whitehurst to New York to evaluate the "explosive residue problem" at the crime scene. Id. at 165. Before he left for New York that night, Whitehurst was informed that David Williams was in charge of the FBI's forensic investigation into the bombing. Id. at 168.

In the days following the bombing, Whitehurst worked at the crime scene in New York City and at a laboratory nearby "trying to understand through the residue examination what type of explosive chemical energetic material was actually involved in the bomb." Id. at 173-74.

On approximately the tenth day after the bombing, the laboratory that Whitehurst was using was forced to shut down after Whitehurst accidentally contaminated the lab with nitroglycerine. Id. at 174-75. Whitehurst returned to the FBI Laboratory and continued analyzing debris materials. Id. at 190.

2. Whitehurst's Concerns Regarding the Urea Nitrate Theory

According to Whitehurst, after a substantial amount of urea nitrate was found at the conspirators' "bomb factory", many in the FBI theorized that the World Trade Center explosion was caused by a bomb with a main charge of urea nitrate ("Urea Nitrate Theory"). Id. at 181-85, 190. Thus, it was left to the FBI Laboratory to determine whether scientific evidence supported this theory.

The normal way that a crime laboratory determines the main charge of an exploded bomb is by residue analysis, that is, by finding unconsumed particles or distinctive by-products of the explosive among the residue. IG Report at 96. As Whitehurst stated at the hearing:

  if we could place [urea nitrate] at the World Trade
  Center, it would essentially . . . be the nail that
  locked the top of the coffin on, if you will. If we
  found urea nitrate residue in the World Trade Center,
  and we found it at a manufacturing facility, we all
  realized the implications of that . . .

Id. at 180, 183-85.

Whitehurst believed, however, that it was impossible to conclude from residue analysis that urea nitrate was the main charge of the World Trade Center bomb. Id. at 177-78. The problem was that the FBI Laboratory had no experience with urea nitrate. Id. at 178. Thus, it had no technique for confirming the presence of urea nitrate in trace amounts on debris from the bombing. Id. at 180, 216, 229.

The FBI Laboratory did, however, have the capability to detect the presence of trace amount of urea and nitric acid — the substances into which urea nitrate quickly decomposes when exposed to moisture or humid air. Id. at 180-81.

If urea nitrate were used in the bombing, it would likely have decomposed into urea and nitric acid shortly after the blast, leaving traces of the two substances on the debris. Thus, if urea and nitric acid were found on the debris, it could constitute "distinctive by-products" of a urea nitrate main charge.

In fact, both urea and nitric acid were found on debris. Id. at 181. Whitehurst believed, however, that because of contamination, urea and nitric acid would likely have been present at the crime scene even if the explosive used were not urea nitrate. Id. at 180-81.*fn18 Thus, Whitehurst concluded that it was impossible to determine unequivocally through residue analysis that the main charge was urea nitrate. Id. at 178.

3. Whitehurst's Disagreements with His Superiors

According to Whitehurst, his refusal to adopt the Urea Nitrate Theory, as well as his concerns about other aspects of the investigation, resulted in several disagreements with his superiors at the FBI Laboratory prior to the first World Trade Center trial. Recounted below is a brief overview of Whitehurst's disagreements, and I note that all Whitehurst's complaints were resolved to his satisfaction prior to trial. See IG Report at 83.

a. The April Report

On April 12, 1993, the FBI Laboratory issued an official report concerning the evidence collected in the World Trade Center investigation ("April Report"). Id. at 194-95; IG Report at 140-41. The April Report included findings from explosive residue analysis conducted on debris from the crime scene. IG Report at 140. The analyses were conducted at the FBI Laboratory, but not by Whitehurst. Id.

The April Report included at least one finding that the presence of urea nitrate had been detected on a piece of debris recovered from the crime scene. Id. Whitehurst disagreed strongly with this conclusion because it was based on:

  reports that were written by people who were not [as]
  qualified in my opinion as the position I was in to
  render them. The data wasn't sufficient to render the
  opinions.

Id. at 194. Specifically, Whitehurst argued that the analyses were only showing the presence of urea and nitric acid — not urea nitrate. IG Report at 140. Whitehurst's concerns were overruled, and the April Report was issued. Id.

After an incident where Whitehurst and another examiner demonstrated the flaw in the April Report's findings, Whitehurst was given permission to review the Report and prepare new "dictations" where his findings differed from those contained in the Report.*fn19 Id.; Hearing Tr. at 196.

b. The Attempt to Alter Whitehurst's Dictation

After submitting the dictations, Whitehurst was called into speak with his Unit Chief at the FBI Laboratory:

  Roughly I remember that the [dictations] said
  something to the effect that the explosive could have
  been urea nitrate explosive. However, there were
  other materials that we found such as . . . the urea
  on the road, or the urea from the sewage, nitrate
  ions from, you know, whatever. And we could not
  discount those as where the material came from. And
  my boss called me in. He showed me a piece of paper
  that I had written and highlighted on that piece of
  paper were the alternative explanations for the data
  and he said, they want you to take that out.

Hearing Tr. at 190-91 (emphasis added). Apparently the "they" who wanted the alternate reasons deleted from the dictations was David Williams. Id. at 191; IG Report at 135.

A meeting was held among several supervisors at the FBI Laboratory to discuss Whitehurst's dictations, and it was agreed that the dictations would be left substantially unchanged. Hearing Tr. at 252-53; IG Report at 135. Williams agreed to this decision. Hearing Tr. at 202-05, 341; IG Report at 135.

c. The July Report

Whitehurst's dictations were then incorporated into a revised official report issued by the FBI Laboratory on July 1, 1993 ("July Report"). Hearing Tr. at 202-05, 341; IG Report at 141.

The revised report remedied Whitehurst's objections to the April Report and, according to Whitehurst, provided an accurate assessment of the scientific evidence in the World Trade Center bombing. Hearing at 203-04. Moreover, the IG found that this controversy was "correctly resolved", and that there was "no misconduct".*fn20 See IG Report at 140-43.

4. The Haldimann Episode

On December 15, 1993, while the first World Trade Center trial was ongoing, Whitehurst attended a Christmas party at FBI Headquarters. Hearing Tr. at 217. At the party, Whitehurst engaged in a conversation with Supervisory Special Agent Don Haldimann from the FBI's New York office. Id.

In his testimony at the Hearing, Whitehurst claimed that:

  Mr. Haldimann was concerned about the complexity of
  my reports and the format that they were in and that
  they could cause damage to the prosecutors' case and
  the World Trade Center case. And he advised me at the
  time that the prosecutors had . . . asked him if
  there was any way to get around my testimony . . .

Id. at 219-20. Shortly after his conversation with Haldimann, on December 19, 1993, Whitehurst sent a memorandum to the IG summarizing the conversation. Hearing Tr. at 220; IG Report at 144. Whitehurst also stated in the memorandum that he believed the conversations indicated possible suppression of evidence and unethical behavior by prosecutors at the United States Attorney's Office.*fn21 Hearing Tr. at 220; IG Report at 144.

Whitehurst's claims regarding his conversation with Haldimann were investigated by the IG, and the IG found that Whitehurst "grossly overstated the matter", and that there was no evidence of suppression of evidence or other unethical behavior by prosecutors.*fn22 IG Report at 145.

5. Criticisms of Williams' Testimony

On January 8, 1996, nearly two years after the conclusion of the first World Trade Center trial, Whitehurst sent an eighty page letter to the IG critiquing Williams' testimony at trial. Hearing Tr. at 269. The letter marked the first occasion that Whitehurst notified anyone in the Department of Justice or the FBI about his concerns regarding Williams' testimony. Id.

In connection with the preparation of the IG Report, the IG investigated Whitehurst's criticisms. In the end, the IG found that the vast majority of the allegations were "meritless" or resulted in errors that were "insignificant". IG Report at 83. The IG did find, however, that Whitehurst's allegations with regard to three areas of Williams' testimony were legitimate. Thus, as detailed below, the IG criticized Williams for providing what it found to be "inaccurate and incomplete testimony", as well as "testimony tailored to the most incriminating result."*fn23 Id.

a. Criticisms of Williams' Testimony Contained in the Inspector General's Report

The first area of Williams' testimony criticized by the IG concerned the FBI's efforts after the bombing to manufacture urea nitrate and construct a urea nitrate based bomb. See IG Report at 84-95. The IG found that Williams falsely represented that the FBI manufactured urea nitrate based on formulas found in the manuals contained in the terrorist kit seized from Ajaj when he was arrested at Kennedy Airport. The IG also found that Williams overstated his involvement in the manufacturing process.

The second area of Williams' testimony criticized by the IG concerned the reasoning used by Williams to conclude that urea nitrate served as the main charge of the World Trade Center bomb. See IG Report at 95-134. Specifically, Williams testified that the Defendants had the capacity to manufacture approximately 1200 pounds of the explosive urea nitrate, and that the main explosive used in the World Trade Center bomb consisted of approximately 1200 pounds of urea nitrate. The IG found that Williams' testimony concerning the size of the bomb that the Defendants' could have constructed and the size of the World Trade Center bomb was "outside his area of expertise" and "deeply flawed".*fn24

Finally, the IG criticized Williams' testimony on cross-examination concerning his failed attempt to prevent certain language in Whitehurst's dictations — the language stating possible alternate reasons for the presence of urea and nitric acid on debris samples — from being included in the July Report. See IG Report at 134-37. See also infra Part I(A)(3)(b). The IG concluded that Williams' answers were "at a minimum, misleading" when he denied that he was "dissatisfied" with the inclusion of alternate reasons in the dictations. IG Report at 137.

B. Abouhalima's Legal Claims

1. Interests of Justice

Abouhalima argues that a new trial is warranted as a result of the newly discovered evidence contained in Whitehurst's allegations and the IG Report. All the new evidence offered by Abouhalima concerns the scientific evidence supporting the government's theory that the main charge of the World Trade Center bomb was urea nitrate.

Federal Rule of Criminal Procedure 33 provides that I may grant a motion for a new trial "if the interests of justice so require." Fed.R.Crim.P. 33. Here the interests of justice do not require a new trial because there can be no dispute that the main charge of the World Trade Center bomb was, in fact, urea nitrate. The mastermind of the plot, Ramzi Yousef, clearly stated that the main charge was urea nitrate in his post-arrest statement.*fn25 Yousef Stmt. at 11.

Whatever flaws there may be in the scientific evidence supporting the Urea Nitrate Theory, the theory's conclusion — that the bomb's main charge was urea nitrate — has not been and cannot be challenged. Thus, insofar as the jury may have relied on flawed scientific evidence to accept the Urea Nitrate Theory, Abouhalima cannot credibly claim any injustice because the Theory itself is true — the main charge was urea nitrate.

Moreover, as detailed below, even if I were to put Yousef's post-arrest statement aside, Abouhalima's claims would still fail.

2. Alleged Newly Discovered Evidence of Perjured Testimony

Abouhalima argues that a new trial is mandated because newly discovered evidence indicates that the government knew, or should have known, that Williams' provided "false and misleading" testimony.

To prevail on a claim based on newly discovered evidence of false testimony by a government witness, a defendant must first demonstrate that the witness, in fact, committed perjury. United States v. Torres, 128 F.3d 38, 49 (2d Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1399, 140 L.Ed.2d 657 (1998). Once that requirement has been met, the grant of a new trial depends on the "materiality of the perjury to the jury's verdict and the extent to which the prosecution was aware of the perjury." United States v. Wong, 78 F.3d 73, 81 (2d Cir. 1996) (internal quotation marks and citation omitted).

If the prosecution was unaware of the perjury at the time of trial, the defendant must "show that the jury probably would have acquitted in the absence of the false testimony" to prevail on his motion for a new trial. Torres, 128 F.3d at 49. On the other hand, if the prosecution knew or should have known of the perjury, a new trial is warranted "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury."*fn26 Id. (internal quotation marks and citation omitted).

Even if the prosecution knew of the perjury, if "independent evidence supports a defendant's conviction, the subsequent discovery that a witness's testimony at trial was perjured will not warrant a new trial." Wong, 78 F.3d at 82 (citing United States v. Reyes, 49 F.3d 63, 68 (2d Cir. 1995)).

a. Evidence that Williams Perjured Himself and the Prosecution's Alleged Knowledge Thereof

As a threshold matter, Abouhalima has failed to demonstrate that Williams' problematic testimony rises to the level of perjury.*fn27 Similarly, Abouhalima has not come forward with any credible evidence to support his claim that prosecutors knew or should have known of the alleged perjury.*fn28 Realizing, however, that Abouhalima claimed in his papers and at the Hearing that he could produce witnesses to substantiate his claims of perjury and the prosecutors' knowledge thereof, I will assume that Abouhalima could have done so, and thus, will not rest my decision on those flaws in his claim.

b. Independent Evidence of the Defendants' Guilt

Abouhalima's claim contains a fatal flaw that no witness or other evidence could possibly remedy — the fact that the jury was presented with ample evidence independent of Williams' testimony to conclude that the ...


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