The opinion of the court was delivered by: KEVIN THOMAS DUFFY, District Judge
On May 29, 2001, following a five-month jury trial before the
Honorable Leonard B. Sand of this Court, Wadih El-Hage was
convicted of: (1) conspiracy to kill United States nationals; (2)
conspiracy to commit murder; (3) conspiracy to destroy buildings
and property of the United States; and (4) eighteen counts of
perjury. Conviction on each charge stemmed from El-Hage's
participation in the al Qaeda terrorist organization. El-Hage's
three co-defendants at trial, Mohamed Sadeek Odeh ("Odeh"),
Mohamed Rashed Daoud al-'Owhali ("al-'Owhali") and Khalfan Khamis
Mohamed ("K.K. Mohamed"), were convicted of a total of 284 counts
stemming from their activities with al Qaeda, including their
participation in the 1998 synchronized attacks on the United
States Embassies in Dar-es-Salaam, Tanzania and Nairobi,
Kenya.*fn1 The Government sought the death
penalty against al-'Owhali and K.K. Mohamed. However, following a
two-day penalty phase, the jury did not impose the death penalty.
On October 18, 2001 all four defendants were sentenced to life
imprisonment. Under the rules of this Court the matter was
reassigned to me.
On October 24, 2003, El-Hage filed this Motion seeking various
relief.*fn2 First, El-Hage claims he is entitled a new trial
Second, El-Hage seeks to reopen his pre-trial motion to suppress
evidence gathered from wiretaps and a search of his home in
Kenya. Finally, El-Hage makes a broad array of discovery
requests, including demands for access to several purported al
Qaeda figures. As discussed, infra, with one exception
El-Hage's motion and his requests are without merit.
I. Request for a New Trial
"Upon the defendant's motion, the court may vacate any judgment
and grant a new trial if the interest of justice so requires."
Fed.R.Crim.P. 33. "Such authority is only exercised, however,
in the most extraordinary circumstances." United States v.
Locascio, 6 F.3d 924, 949 (2d Cir. 1993). Where a motion is
based on newly-discovered evidence courts will
only grant a new trial if the evidence: (1) could not have been
discovered through due diligence before or during trial; (2) is
material; (3) is non-cumulative; and (4) would probably have led
to an acquittal. Id.
El-Hage bases his request for a new trial on three grounds: (1)
the jury's alleged exposure to extrinsic information; (2) the
Government's alleged use of an informant to gain information from
El-Hage during his confinement at the Metropolitan Correctional
Center ("MCC"); and (3) the Government's failure to disclose
(either before or during trial) certain recordings of interviews
with Jamal Ahmed Mohamed al-Fadl ("al-Fadl"), one of the
Government's trial witnesses.
As discussed below, El-Hage's first two claims are entirely
without merit. His allegations on these two points are
insufficient to require an evidentiary hearing, let alone a new
trial. El-Hage has, however, raised sufficient questions
regarding the recordings of the al-Fadl interviews to warrant an
A. The Jury's Alleged Exposure to Extrinsic Information
On January 5, 2003, the New York Times published an article
purportedly based on interviews with several jurors from
El-Hage's trial. See Benjamin Weiser, A Jury Torn and Fearful
in 2001 Terrorism Trial, N.Y. Times, January 5, 2003 ("Weiser
article"). The article included statements that: (1) "[o]ne
juror used the Internet at home to research a difficult legal
concept concerning . . . Mohammed Sadiq Odeh"; (2) "A number of
jurors also became aware that the accused were in leg shackles";
and (3) "two jurors [sought] religious guidance as they struggled
to weigh factors for or against execution for Mr. al'Owhali."
Id. El-Hage argues that these alleged improprieties warrant a
new trial or, at minimum, an evidentiary hearing. I disagree.
With good reason, courts are reluctant to conduct post-verdict
inquiries into the conduct of jurors during their deliberations.
King v. United States, 576 F.2d 432, 438 (2d Cir. 1978). This
reluctance stems from a desire "to avoid harassment of jurors,
inhibition of deliberation in the jury room, a deluge of
post-verdict applications mostly without real merit, and an
increase in opportunities for jury tampering; it is also to
prevent jury verdicts from being made more uncertain." Id.
Accordingly, a post-trial hearing into juror conduct is required
only where "a party comes forward with clear, strong, substantial
and incontrovertible evidence . . . that a specific,
non-speculative impropriety has occurred." United States v.
Ianniello, 866 F.2d 540, 543 (2d Cir. 1989) (internal quotation
marks omitted); see also King, 576 F.2d at 438 ("to
authorize a post-verdict inquiry there must be `clear evidence',
`strong evidence', `clear and incontrovertible
evidence', `substantial if not wholly conclusive evidence.'"
(quoting United States v. Dioguardi, 492 F.2d 70, 78-80 (2d
Cir. 1974)). The allegations in El-Hage's motion do not satisfy
1. Alleged Internet Research
As a preliminary matter, El-Hage and al-'Owhali lack standing
to pursue any claim based on a violation of Odeh's constitutional
rights. See United States v. Cafaro, 480 F. Supp. 511, 520
(S.D.N.Y. 1979) (holding that "[one defendant] has no standing to
assert a violation of [a co-defendant's] constitutional rights").
Odeh is the only person who may seek relief for any alleged
violation of his rights. See id.
Odeh's claim is based on a single sentence from the Weiser
article which states: "One juror used the Internet at home to
research a difficult legal concept concerning the fourth
defendant, Mohammed Sadiq Odeh." This single sentence is not the
type of "clear, strong and incontrovertible evidence" that
requires a hearing. The sentence is vague; it does not identify
the issue that was allegedly researched or the juror who
purportedly conducted the research. Furthermore, the report does
not claim that the "research" was communicated to the rest of the
jury. This single sentence, an unsworn snippet of hearsay within
a newspaper article, is far less substantial than
the sworn affidavits present in cases where evidentiary hearings
have been ordered. See, e.g., Ianiello, 866 F.2d at 543.
In sum, Odeh's claim rests on a "frail and ambiguous" statement
one made almost as an aside in a news story. See King,
576 F.2d at 438; see also Machibroda v. United States,
368 U.S. 487, 496 (1962). Odeh's claim falls far short of presenting
"specific and detailed factual assertions" that might require a
hearing. Id. Such speculation simply does not warrant hauling
the jurors back to court over two years after the verdict was
Furthermore, the defendants' assertion that the alleged
Internet research "raises serious questions about the scope of
the jurors' affirmative access to extrinsic evidence and other
materials and information" and their corresponding request for a
wide-ranging hearing "on the scope and depth of the jurors'
(affirmative and passive) exposure to and consideration of
extrinsic evidence during the trial and deliberations in this
case" are wholly inappropriate. (El-Hage Mem. in Supp. at 12.)
The defendants seek nothing less than a generalized fishing
expedition into what the jury might have seen and considered in
its deliberations. Granting this request would be unprecedented.
The Court of Appeals and the trial courts of this Circuit have
consistently refused to allow such fishing expeditions and I
decline the invitation to conduct one here.
See, e.g., Ianniello, 866 F.2d at 543 ("This court has
consistently refused to allow a defendant to investigate jurors
merely to conduct a fishing expedition." (internal quotation
2. Alleged Knowledge of Defendants' Shackles
Throughout the trial, El-Hage and the other defendants wore leg
shackles.*fn3 El-Hage and the Government agree that Judge
Sand took extraordinary precautions to keep these restraints
hidden from the jury. The defendants wore no handcuffs. Their leg
shackles were taped to reduce any noise and were hidden from
jurors' view by an apron placed on the defense table.
Additionally, the defendants were always seated at the defense
table before the jury entered the courtroom and only Judge Sand
was permitted to stand when the jury entered or left. In sum,
Judge Sand took all reasonable precautions to ensure that the
defendants were not "parad[ed] . . . before the jury in
shackles." Davidson v. Riley, 44 F.3d 1118, 1124 (2d Cir.
Despite these precautions, the Weiser article asserts (in a
single sentence, without further elaboration) that "[a] number of
jurors also became aware that the accused were in leg shackles."
El-Hage seizes on this reference and argues that
this "awareness" "was sufficient to prejudice Mr. El-Hage and his
co-defendants beyond repair." (El-Hage Mem. in Supp. at 7.) I
cannot agree. Although the Second Circuit has not yet ruled on
whether jurors' inadvertent sightings of shackled defendants are
presumptively prejudicial, cases in other circuits have held that
defendants must show specific prejudice from such sightings
before being entitled to relief. I find these cases persuasive.
Harrell v. Israel, 672 F.2d 632 (7th Cir. 1982), is
particularly analogous. In Harrell a state prisoner filed a
habeas corpus petition claiming he was prejudiced when he and
his witness were required to wear leg irons throughout the
prisoner's trial on charges of assaulting a prison guard. Id.
"Before the trial began, the state trial judge, believing
security to be of genuine concern, ordered that the leg irons
which [petitioner] and his witness had worn while being
transported from the prison would remain on them during trial."
Id. at 634. "To guard against possible prejudice, the trial
judge also ordered that certain precautions be taken so that the
jury would not be allowed to focus on the leg irons . . . the
jury was not to be brought into the courtroom until [petitioner]
was seated at counsel table where the leg irons could not be
seen." Id. Additionally, "when [petitioner] or his inmate
witness was to testify, arrangements were made so that they would
be seated in and leave the witness box outside the
presence of the jury." Id. The Seventh Circuit noted that
"[d]espite these precautions, . . . it may have been possible for
a few of the jurors to have seen that [petitioner] and his
witness were wearing leg irons." Id.
In rejecting petitioner's claim of prejudice in Harrell, the
Court of Appeals noted that "this case differs from previous
decisions involving the use of physical restraints in that here
the trial judge made every effort and, insofar as the record
shows, was successful, at least for the most part, in preventing
the jury from becoming aware of the restraints." Id. The court
then concluded that "the steps taken by [the trial judge] to hide
the leg irons from the jury's view adequately protected
petitioner from the possibility of prejudice." Id. at 637. I
find that conclusion equally appropriate here.
As the district court initially addressing the habeas
corpus petition in Harrell noted:
To state, as petitioner does, that he was "shackled
in leg irons" conjures up images of dungeons, sounds
of chains rattling on the courtroom floor and legs
dragging as petitioner approaches the witness stand.
When the record is viewed, however, it is clear those
images must be erased. The trial judge ordered that
[petitioner and his witness] would wear leg irons,
but that all possible precautions would be taken to
prevent the jury from focusing on the leg irons. He
also ordered that neither petitioner nor his witness
would wear handcuffs.
Id. Like the courtroom in Harrell, the courtroom in this case
was no dungeon; it was not filled with sounds of clanking chains
reminiscent of a visit from the ghost of Jacob Marley. My review
of the record does not reveal any prejudice to El-Hage or the
other defendants. Thus, even assuming the single sentence from
the Weiser article is accurate, and some jurors "became aware" ...