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February 7, 2005.

USAMA BIN LADEN, et al., Defendants.

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 Page 2 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 Page 3 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 evidentiary hearing.

  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 Page 4 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 Page 5 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 this standard.

  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 Page 6 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 rendered.

  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. Page 7 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 marks omitted)).

  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. 1995).

  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 Page 8 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 Page 9 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 Page 10 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" ...

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