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U.S. v. LADEN

November 2, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
USAMA BIN LADEN, et al., Defendants.



The opinion of the court was delivered by: KEVIN DUFFY, District Judge

OPINION & ORDER

Through a mixture of inaction, incompetence and stonewalling to cover up their mistakes, the United States Marshals Service and the Department of Justice's Office of Enforcement Operations have seriously jeopardized the convictions of al Qaeda terrorist Wadih El-Hage. On May 29, 2001, El-Hage (who at times has purportedly acted as Usama bin Laden's personal secretary) 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. Because the Marshals Service suppressed evidence during El-Hage's trial, however, there are grave concerns that El-Hage must be retried.

El-Hage was tried jointly with three other al Qaeda terrorists, each of whom were convicted for their roles in the 1998 synchronized bombings of two United States Embassies in Africa. Those attacks killed 224 people and wounded thousands. El-Hage was convicted, not for hands-on participation in these bombings, but rather for participating in al Qaeda's broader conspiracy to kill Americans, and for lying to two grand juries regarding al Qaeda. On October 18, 2001, El-Hage and his codefendants were each sentenced to life imprisonment.

  On October 24, 2003, El-Hage filed a motion seeking various relief, including a new trial pursuant to Fed.R.Crim.P. 33. In an Opinion and Order dated February 7, 2005, United States v. Bin Laden, No. S7R 98 CR 1023 (KTD), 2005 WL 287404, (S.D.N.Y. Feb. 7, 2005), I denied all but one of El-Hage's requests. That request seeks a new trial based on the Government's failure to make timely disclosure of the videotapes and transcripts of twenty-eight hours of interviews between prosecutors, FBI agents and government witness Jamal al-Fadl.

  To determine whether the Government's failure to turn over the transcripts of these interviews until more than fifteen months after El-Hage's sentencing warrants a new trial, I held a series of hearings on February 17, April 26 and June 6-7, 2005. Based on the evidence adduced at those hearings, my review of the video-teleconference videotapes, the trial record and exhibits, the pre-trial discovery and "3500 material" originally produced, and the parties' submissions, I make the following findings. I. Creation and Disclosure of the Tapes

  A. Jamal al-Fadl

  The Government's first witness at El-Hage's trial was Jamal al-Fadl, a former al Qaeda member, who testified extensively about the history, structure and operation of al Qaeda. Al-Fadl also testified about some of El-Hage's al Qaeda activities. By the time of his trial testimony, al-Fadl was a longtime cooperator who had provided the Government with significant inside information about al Qaeda and other Islamist terrorist organizations.

  Al-Fadl's cooperation with the United States began in 1996 when he approached a United States Embassy and offered to provide information about the terrorist groups and threats of which he was knowledgeable. During December 1996, al-Fadl was brought to the United States in FBI custody and was assigned a protective detail of FBI agents who guarded him around the clock.*fn1 From the time he approached the Embassy, and throughout his FBI custody in the United States, FBI agents and Assistant United States Attorneys investigating al Qaeda regularly interviewed al-Fadl.

  On July 16, 1997, pursuant to a cooperation agreement, al-Fadl pleaded guilty to charges of: (1) conspiracy to injure and destroy national defense material, premises and facilities of the United States; and (2) conspiracy to carry an explosive during the commission of a felony. Each charge involved al-Fadl's activities on behalf of al Qaeda. Following his guilty plea, al-Fadl remained in the protective custody of the FBI, pursuant to a bail agreement, and continued cooperating with FBI agents and AUSAs through late 1998.

  In late 1998, al-Fadl was accepted into the Witness Security Program administered by the United States Marshals Service ("WitSec") and his bail conditions were modified to allow WitSec to relocate al-Fadl (along with his family) to an undisclosed location.*fn2 At the time of his relocation, the Marshals Service designated al-Fadl's case as "Secret" or "Top Secret" because of the national security implications of his information regarding terrorists. In his relocation area, al-Fadl was assigned a WitSec Inspector, John Doe, who was responsible, inter alia, for day-to-day contact with al-Fadl.*fn3 Following his relocation, and throughout 1999, al-Fadl continued to meet with FBI agents and prosecutors via telephone and in person via "neutral site" visits. B. Recording of Video-Teleconferences

  In late December 1999, the Southern District of New York Assistant United States Attorneys who had been interviewing al-Fadl since 1996 requested that WitSec install videoconferencing equipment in al-Fadl's relocation area to facilitate their contact with al-Fadl. The request was motivated primarily by the AUSAs' desire to be able to contact al-Fadl quickly in the event that they needed to show him photographs of suspected terrorists. WitSec complied with the request and, by the end of 1999, purchased and installed video conferencing equipment including: a camera, television, speakerphone, secure T1 line, and videocassette recorder in WitSec offices in al-Fadl's relocation area and New York. This equipment allowed al-Fadl, accompanied by Inspector Doe, to travel to the WitSec office and engage in two-way video-teleconferences with the Southern District of New York prosecutors.

  Around the time Marshals Service employees were installing the videoconference equipment, Inspector Doe spoke with one of his supervisors, Branch Chief Inspector George Walsh (who was stationed at USMS Headquarters in Washington, D.C.), regarding how he should prepare reports regarding the al-Fadl teleconferences.*fn4 Doe was told that the Marshals Service computer system in the relocation area was unable to handle classified information and that he should therefore videotape the teleconferences rather than preparing detailed written reports. Finding this order odd, Inspector Doe sought confirmation from his direct supervisor, Supervisory Inspector Mike.*fn5 Supervisory Inspector Mike conferred with the Chief Inspector for the relocation area, William Wagner, who confirmed that USMS Headquarters had ordered the videotaping of the video-teleconferences. Inspector Doe then requested, and received, approval from his supervisor to purchase videotapes on which he recorded the conferences.

  Eighteen video-teleconferences were conducted between January 21, 2000 and January 14, 2002. Thirteen of the conferences occurred before the conclusion of El-Hage's trial; twelve of these were videotaped.*fn6 During the conferences, Inspector Doe would sit in the same room as al-Fadl, though Doe would generally be "off camera." Inspector Doe recorded each session by placing a tape in the VCR (which was located in a cabinet directly underneath the television used for the teleconference) and pressing "Record." If the tape ran out during a session, Inspector Doe would eject it and replace it with a new one. Inspector Doe did not announce these tape changes to the conference participants. In all, Inspector Doe recorded approximately twenty-eight hours of video-teleconference on six videotapes. The only person who explicitly indicates knowledge of the taping during the video-teleconferences is al-Fadl, who tells his wife (in Arabic) during one meeting that the session is being recorded.*fn7

  After each conference Inspector Doe prepared a USMS Field Report ("USM 210") with the date of the video-teleconference and the statement, "WC [al-Fadl] came to this office for interview on CCTV with AUSA, see tape #____," indicating the number of the videotape on which he had recorded the session. After preparing the report and printing it, Inspector Doe deleted it from the computer system. Inspector Doe then presented the printed report to Supervisory Inspector Mike who reviewed it, signed it and forwarded it to USMS headquarters in Washington. At headquarters, the report was to be reviewed by the case manager on al-Fadl's case and placed in al-Fadl's file. Throughout the period of the videotaping, al-Fadl's case manager changed frequently, with as many as five Inspectors filling the position over the two-year period. The case managers' supervisor, however, did not change; Chief Inspector Walsh supervised all of the case managers at USMS headquarters throughout substantially all of the period when the videotaping occurred.

  After creating the videotapes and reporting them to his superiors, Inspector Doe secured the tapes in his office safe. At no point prior to or during El-Hage's 2001 trial did Inspector Doe, Supervisory Inspector Mike, Chief Inspector Wagner, Chief Inspector Walsh, or any of the five case managers from al-Fadl's case contact the United States Attorney's Office to discuss turning over the tapes to the prosecutors for possible disclosure to the defendants.

  C. Marshals Service and OEO Delays in Providing Tapes to Prosecutors

  Prosecutors in the Southern District of New York first learned of the tapes' existence in approximately January 2002. In late 2001, George Dapra, the WitSec Inspector in the New York area who had acted as the prosecutors' liaison with Inspector Doe, was preparing to retire and called Inspector Doe to make arrangements for the transition to a new Inspector in the New York area. During that call, Inspector Doe asked Inspector Dapra what he should do with the videotapes of the al-Fadl conferences. Inspector Dapra responded that he had not known of any tapes, and he subsequently called United States Attorney Patrick Fitzgerald to inform him of the tapes' existence.*fn8 Mr. Fitzgerald was (to put it mildly) shocked and angered to learn of the taping and called Assistant United States Attorney Kenneth M. Karas who was equally surprised and upset to learn of the recordings.*fn9

  Almost immediately after learning of the taping (approximately January 18, 2002), U.S. Attorney Fitzgerald contacted Laura Henry of the Department of Justice Office of Enforcement Operations ("OEO"), with whom he had dealt previously on some matters related to al-Fadl.*fn10 U.S. Attorney Fitzgerald informed Ms. Henry of the situation and explained the importance of maintaining the tapes so that they could be delivered to AUSA Karas. By January 22, 2002, AUSA Karas had also contacted OEO and explained that he needed the tapes as soon as possible. He did not, however, receive the tapes forthwith, and never had possession of the original tapes or a complete copy thereof.

  Despite AUSA Karas's repeated requests (and later demands), OEO and the Marshals Service failed to deliver the tapes promptly. Instead, the Marshals Service was conducting an investigation of the taping, apparently under the leadership of the Chief of Protective Operations, Frank Skroski. Of course it would have been possible (and preferable) to have a copy of the tapes made and turned over immediately upon learning of their existence. This, however, did not happen. Notably, the "report" of the Skroski investigation, although prepared in February and March 2002, was not turned over to the United States Attorney's Office until February 14, 2005, mere days before the initial hearing in this matter. This withholding of relevant information was part of the stonewalling faced by the prosecutors in this matter. The Marshals Service, however, was not alone in the stonewalling.

  At one point an OEO employee suggested that, if the Marshals Service kept the tapes, the AUSAs might avoid any disclosure obligation to the defense because the AUSAs would have never "possessed" the relevant Jencks, Brady or Giglio material. This suggestion was, properly, rejected out of hand. Stephen T'Kach, Director of OEO, suggested that the tapes might constitute an illegal wiretap, and therefore posited that disclosing them to the prosecutors could run afoul of Title III.*fn11

  By February 21, 2002, almost a full month after his first request that the tapes be delivered as soon as possible, AUSA Karas was justifiably livid at the fact that he had received nothing. In another call to OEO, he explained, with acute prescience, "it will look bad that the government has known about these tapes and hasn't done anything about it yet." This admonition apparently did not prod OEO or the Marshals Service, and by February 25, nothing had changed. AUSA Karas again called OEO, demanding that he receive the tapes by March 8, 2002. By March 7, 2002 the Marshals Service and OEO had finally begun the process of providing copies of the tapes to AUSA Karas. The tapes were sent to the FBI Field Office in Washington, D.C. where they were duplicated, and portions of the tapes were edited out of the copies for security reasons.*fn12 AUSA Karas ultimately received these edited copies of the tapes approximately March 21, more than two months after U.S. Attorney Fitzgerald's initial call to OEO.*fn13

  Upon receiving the tapes, AUSA Karas and other Southern District AUSAs had them transcribed. They reviewed those transcriptions and redacted various portions to protect the identities of certain individuals and to protect operational information that they believed was not subject to discovery. The prosecutors then provided these redacted transcripts to counsel for El-Hage and his codefendants. On October 24, 2003, El-Hage filed the instant motion seeking, inter alia, a new trial based on the government's failure to disclose the tapes earlier in accordance with Brady, Giglio and the Jencks Act.

  D. Marshals Service's Withholding of Information Regarding the Creation of the Tapes

  Briefing on El-Hage's Rule 33 Motion was complete by April 30, 2004. As discussed in detail, infra, that Motion put at issue the Government's state of mind with respect to its failure to make timely disclosure of the videotapes. Despite the importance of this issue, at no time, until February 2005, when I convened the first evidentiary hearing in this matter, did the Marshals Service disclose to the United States Attorney's Office the facts and circumstances regarding the tapes' creation. Indeed, until these hearings, the Marshals Service held an unyielding monopoly on the only information available regarding the critical issue of the Government's state of mind.

  In his undated letter to AUSA Karas accompanying the transmission of the tapes, Witness Security Chief Frank Skroski made only the briefest mention of the circumstances surrounding the tapes' creation.*fn14 Chief Skroski stated, "these tapes were erroneously made as a result of mis-communication between members of my headquarters and field staff." Despite having gathered statements from many of those involved in the taping in February and March 2002, the Marshals Service chose not to elaborate to prosecutors on this fragmentary explanation.

  In the Government's initial Brief in Opposition to El-Hage's Rule 33 Motion, prosecutors aptly summarized the lack of information forthcoming from the Marshals Service, stating, "After repeated inquiries, the Marshals Service produced 28 hours of videotapes to [the U.S. Attorney's Office], without any explanation as to who had ordered the videotapes to be made and preserved, or why their existence had not been disclosed earlier." Prosecutors in good faith also repeated the Marshals Service's representation "that the videotapes were made pursuant to an unauthorized, independent decision by one or two employees of the Marshals Service."*fn15

  On December 16, 2004, I held an initial conference in this matter to confirm which defendants sought to join in El-Hage's motion, and to inform the parties that I intended to conduct hearings in the near future to resolve those issues requiring evidentiary presentations. On February 7, 2005, I issued an Opinion and Order denying the majority of El-Hage's claims and reserving judgment on the claims related to the videotapes. In that Opinion, I noted:
The as-yet-unexplained circumstances surrounding the creation and discovery of the videotapes must be developed before resolving this motion. Among other things, the legal standard governing whether to grant a new trial when the Government fails to produce Jencks Act material varies depending on the Government's state of mind.
Bin Laden, 2005 WL 287404, at *8. I then identified five "keenly important" questions regarding the tapes:
(1) who ordered the recording of the interviews; (2) who authorized payment and paid for the recordings; (3) who operated the recording equipment; (4) who had custody of the tapes after they were made; and (5) how were the tapes "discovered" after trial.
Id. at *9. In that Opinion, I also set a scheduling conference for February 10, 2005 "to set a hearing on the issue of the al-Fadl videotapes and the question of whether the Marshals Service's conduct should be imputed to the prosecutors." Id. at 14.

  Prior to the February 10 conference, I asked the Government when it expected to have answers to the questions in my February 7 Opinion. I was informed that prosecutors were unsure of when they would have answers, as they had been unable to learn from the Marshals Service the identity of all potentially relevant witnesses. At the February 10 scheduling conference, I again asked the Government when I would have answers to the questions I had posed. I was again told that the United States Attorney's Office had, as yet, been unable to identify even the "universe of people who had knowledge of the recordings."

  In light of the Government's submissions indicating that prosecutors had been forced to make repeated requests to obtain the videotapes themselves, it seemed unlikely that the Marshals Service was going to promptly respond to the United States Attorney's Office's requests for information. Indeed, it appeared the prosecutors were again encountering a stone wall, like the one they initially ran up against when trying to get the tapes. Prodding the Marshals Service into action, I scheduled a February 17 hearing, to be attended by the Director and General Counsel of the Marshals Service. At that hearing I sought to inform the Director of the importance of the issues outlined in my February 7 Opinion, and to enlist his assistance in obtaining answers to the questions I had posed in that Opinion.*fn16

  As is generally the case when the bureaucratic tree is shaken from the top, the prod quickly proved effective. In a letter dated February 11, 2005, the United States Attorney's Office informed me that it had "identified individuals who [had] the answers to [the] questions [posed in my February 7 Opinion]." More importantly, on February 14, 2005, the Marshals Service finally disclosed to prosecutors the statements prepared by USMS personnel in 2002 regarding their involvement in the videotaping. Consequently, on February 14, prosecutors were able, for the first time since El-Hage filed this Motion, to give me the names of some individuals believed to have knowledge relevant to the state-of-mind issue.*fn17 On that date, the USMS also provided prosecutors with other relevant documents, including the invoices reflecting the Marshals Service's purchase of the teleconferencing equipment. Notably, however, the Service did not produce all the relevant documents in its possession. Throughout the evidentiary hearings, important documents continued to trickle in, including Inspector Doe's USM 210 reports reflecting the fact that he had informed numerous other individuals within WitSec of the taping. II. Failure to Disclose

  Having established the factual background surrounding the tapes, I turn to the legal issues relevant to this Motion.*fn18

  A. Government Disclosure Obligations

  As every beginning student of criminal procedure learns, the Constitution requires prosecutors to turn over to a defendant any information in their possession that is both favorable and material to his guilt or sentence. See Brady, 373 U.S. at 87. This obligation encompasses information useful solely for impeaching the credibility of a government witness. Giglio v. United States, 405 U.S. 150, 153-55 (1972). After a witness testifies, the government bears a separate obligation, pursuant to the Jencks Act, 18 U.S.C. § 3500, to provide the defendant with "any statement . . . of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified." 18 U.S.C. § 3500(b).

  In defining the scope of the Brady disclosure obligation, the Supreme Court has held that "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Kyles v. Whitley, 514 U.S. 419, 437 (1995). In fleshing out the scope of the duty, this Circuit has made clear that a prosecutor's disclosure obligations are not based on a monolithic view of government where any information held by any government agency must be disclosed. See United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998). Rather, a prosecutor is only obligated to disclose information of which he has either actual or constructive knowledge. Id. A prosecutor has constructive knowledge of any information held by those whose actions can be fairly imputed to him — those variously referred to as an "arm of the prosecutor" or part of the "prosecution team." Id.; see, e.g., United States v. Morell, 524 F.2d 550, 555 (2d Cir. 1975); United States v. Gil, 297 F.3d 93, 106 (2d Cir. 2002).

  B. WitSec as Part of the Prosecution Team

  The government implicitly argues that the decision to create the videotapes, and any blame for the subsequent failure to make timely disclosure, lies with the Marshals Service's WitSec division, an entity allegedly wholly independent of the prosecution team. In essence, the Government claims that since the AUSAs involved turned over the transcripts of the tapes as promptly as possible after learning of their existence (given the delays in receiving them from the Marshals Service), there can be no Brady, Giglio or Jencks violation. Although I have no doubt that the blame for withholding the tapes lies squarely at the feet of certain individuals in the Marshals Service, I cannot agree that WitSec personnel responsible for al-Fadl were not part of the prosecution team with respect to their participation in the teleconferences.

  "[T]he exact point at which government agents can fairly be categorized as acting on behalf of the prosecution, thus requiring the prosecutor to seek out any exculpatory or impeachment evidence in their possession, is uncertain." Chandras v. McGinnis, No. 01 Civ. 2519(LBS), 2002 WL 31946711, at *7 (E.D.N.Y. Nov. 13, 2002); see also United States v. Zagari, 111 F.3d 307, 320 n. 13 (2d Cir. 1997) ("The extent to which knowledge may be imputed from one federal investigative agency to another for Brady purposes is as yet unclear."). At one end of the spectrum, it is clear that the investigating case agents on a particular prosecution are part of the prosecution team; their possession of producible material is imputed to the prosecutor regardless of his actual knowledge. See, e.g., Kyles, 514 U.S. at 438 (rejecting the argument that a state prosecutor "should not be held accountable . . . for evidence known only to police investigators and not to the prosecutor."); Morell, 524 F.2d at 555 (holding government agent to be an arm of the prosecutor where he: (1) actively participated in the investigation; (2) supervised a confidential informant; and (3) sat throughout trial at counsel table with the prosecutors). At the other end of the spectrum, government agents of a separate sovereign who are wholly uninvolved in the investigation being prosecuted are clearly not part of the prosecution team. See, e.g., Shakur v. United States, 32 F.Supp.2d 651, 665-66 (S.D.N.Y. 1999) ("whatever knowledge [the undercover NYPD officer] and his superiors gained . . . during [the officer's] undercover activities . . . may not be imputed to the federal prosecution team"). The instant case lies in a gray area between the two extremes that is largely unilluminated by relevant precedent.

  The parties' citations on this issue underscore the lack of guiding authority. The Government's cases principally involve circumstances so different from the facts presented here that they offer little assistance.*fn19 El-Hage's citations are similarly wide of the mark, though two cases cited from other circuits are analogous enough to this case to be of some assistance.

  Mastracchio v. Vose, 274 F.3d 590 (1st Cir. 2001), involved a cooperating government witness who was purportedly serving his sentence in "protective custody" during the time he testified at Mastracchio's trial. This so-called custody included numerous exorbitant perquisites which, though known to the witness's protection team, were unknown to the prosecutors and accordingly not disclosed to Mastracchio's counsel for use in cross-examination. 274 F.3d at 594-97. These perquisites included, inter alia, large cash payments, state-subsidized sky-diving lessons, access to illegal drugs, free passage through the corridors of the police station where he was being held, out-of-state trips to visit family and various unsupervised excursions. Id.

  Upon learning of these benefits after trial, Mastracchio filed a habeas petition alleging a Brady violation. In light of the prosecutor's conceded ignorance of the unusual benefits conferred on the witness, the First Circuit addressed the issue of imputation. Relying, inter alia, on Kyles, 514 U.S. at 437, the court held that "Supreme Court precedents make manifest that the knowledge of other members of the attorney general's department and of the witness protection team must be imputed to the prosecuting attorney." Mastracchio, 274 F.3d at 600. The court reasoned that, by offering the witness's testimony, the prosecutor had assumed a duty to learn of all "inducements and rewards that the state had tendered" and that the prosecutor was, therefore, chargeable with knowledge of the unorthodox benefits conferred on the witness. Id. at 600-01.

  United States v. Wilson, 237 F.3d 827 (7th Cir. 2001), likewise involved a prosecution witness under the Government's protection. 237 F.3d at 831. Like al-Fadl, the witness had, by the time of trial, entered the USMS WitSec program. Id. At trial, the witness testified that he had not failed any drug tests while in the WitSec program. Id. In fact, the witness had failed three such tests prior to his testimony, a fact known to the Marshals Service but unknown to the prosecutors. Id. Approximately one month after the jury returned a guilty verdict, the Marshals Service notified prosecutors that the witness had been terminated from the WitSec program because of his positive drug tests. Id. Defense counsel sought a new trial based on the Government's failure to disclose the failed tests before or during trial. Id. Without extended analysis, the Seventh Circuit imputed the Marshals Service's knowledge to the prosecutors, holding that, "imputation is proper in these circumstances; it is impossible to say in good conscience that the U.S. Marshal's [sic] Service was not `part of the team' that was participating in the prosecution even if the role of the Marshal's [sic] Service was to keep the defendants in custody rather than to go out on the streets and collect evidence." Id. at 832.

  El-Hage argues that the language in Wilson is equally applicable to this case and urges that the situation here is "not any different" than Mastracchio, thus, imputation is appropriate. The Government counters that Wilson's cursory handling of the imputation issue renders it of little value and further argues that Mastracchio is distinguishable because, in that case, prosecutors had a "reasonable expectation that impeachment material exist[ed]" in the hands of the witness protection team. In the instant case, the Government contends, prosecutors could not have reasonably foreseen that a WitSec Inspector would record the al-Fadl teleconferences because such action was not merely beyond the scope of his WitSec duties, but adverse to the program's goal of protecting enrollees' identities.

  While the Government's reasonable foreseeability argument has some persuasive force, I do not believe that it is the single dispositive factor regarding imputation. Indeed, I suspect the prosecutors in Mastracchio were equally incredulous to learn that their witness had been supplied drugs, large sums of cash and state-sponsored skydiving lessons during his "incarceration" as were the prosecutors here to learn of the videotaped teleconferences. Moreover, I believe the Government's "reasonable foreseeability" criterion, in isolation, improperly narrows the scope of the Government's disclosure obligations. Focusing on this single factor constrains the analysis to what a reasonable prosecutor should have foreseen without regard to the obligations borne by the other government agencies comprising the criminal justice system.

  Although the Government's disclosure obligations are most frequently discussed in terms of a prosecutor's duty, as the Second Circuit has made clear in United States v. Bufalino, 576 F.2d 446 (2d Cir. 1978), other agencies involved in the criminal justice system bear substantial responsibility for mandated disclosures. See 576 F.2d at 448-50 (criticizing FBI for agent's destruction of backup tapes of conversation between witness and defendant, pursuant to agent's understanding of "standard Bureau policy," and holding that "[t]here simply is no longer any excuse for official ignorance regarding the mandate of the law" and that "[i]n educating personnel concerning their responsibilities in this area [i.e., disclosure pursuant to the Jencks act and Fed.R.Crim.P. 16], government agencies must keep in mind the broad definition of discoverable `statements' incorporated in the governing texts."). Thus, based in part on Bufalino, I decline to apply reasonable foreseeability as the single touchstone for imputation because it does not adequately account for the obligations law enforcement agencies bear regarding disclosures to defendants. To hold otherwise would be to shield from disclosure information held by those agencies, as long as they managed to acquire that information in a way prosecutors could not reasonably foresee. I believe such a rule is unjust.

  Having decided against assigning talismanic significance to reasonable foreseeability, and lacking a clearly articulated imputation test from the Court of Appeals, the test I discern from the imputation cases cited is whether, under the totality of the circumstances, al-Fadl's WitSec team could be fairly described as part of the prosecution team. Applying this standard, I find imputation appropriate.*fn20

  In assessing the totality of the circumstances, I first note that the Marshals Service spent approximately $78,000 of its own money to install video-teleconferencing equipment at the prosecutors' request. The stated purpose for equipment's installation was to further the ongoing investigation of al Qaeda by allowing Southern District prosecutors and agents to contact al-Fadl quickly in the event they needed him to identify photographs of possible al Qaeda terrorists.

  As the video-teleconferences progressed, though prosecutors sometimes sought permission for the meetings through an intermediary at OEO, meetings also appear to have been scheduled (apparently without OEO involvement) through direct discussions with WitSec Inspector Dapra in New York who then contacted Inspector Doe to arrange logistics.*fn21 Throughout the teleconferences, which focused largely on the Government's ongoing investigation of al Qaeda, Inspectors Dapra and Doe were continuously present at their respective ends of the connection, acting as necessary intermediaries for the communication.

  Even without more, based on the fact that WitSec, in order to further the Government's investigation, installed and continuously operated the video-teleconference equipment at the prosecutors' request, I would find WitSec to be part of the prosecution team in this case (at least with respect to the Inspectors' participation in the video-teleconferences).*fn22 There are, however, other facts that assure me imputation is proper. Though I find United States Attorney Fitzgerald's testimony entirely credible (including his testimony that he did not consider the WitSec Inspectors to be part of his investigative team), my review of the videotapes indicates that Inspector Doe, at the time of the conferences, on occasion sought to aid the investigative effort by doing more than simply operating the teleconference equipment.

  At one point during the conferences, Inspector Doe explains that he plans to bring al-Fadl to the WitSec office to allow al-Fadl to review a consensually recorded phone call he had made to another al Qaeda operative. After doing so, it appears that Inspector Doe contacted Inspector Dapra and asked him to inform the prosecutors of a substantive issue that had arisen during the review of the tape that al-Fadl believed he should discuss with them. This conduct, though clearly short of full-blown investigation, is nevertheless something more than merely protecting al-Fadl. Though this incident standing alone might be of little significance, considering it within the totality of the circumstances, I believe it entirely appropriate to consider the WitSec personnel as part of the prosecution team.

  C. State of Mind

  Having found that the Government's failure to disclose is attributable to the prosecution team, I turn to the question of the Government's state of mind. Where the Government fails to produce Jencks Act material, the standard for granting a new trial "depends upon whether the suppression was deliberate or inadvertent." United States v. Hilton, 521 F.2d 164, 166 (2d Cir. 1975). "[A] new trial is warranted if the evidence is merely material or favorable to the defense" where the government has either: (1) "deliberately suppresse[d] evidence"; or (2) "ignore[d] evidence of such high value that it could not have escaped its attention." Id. On the other hand, "if the government's failure to disclose is inadvertent, a new trial is required only if there is a significant chance that this added item, developed by skilled counsel, could have induced a reasonable doubt in the minds of enough jurors to avoid a conviction." Id.*fn23

  I feel compelled to look closely at the question of intent based in part on the initial response of OEO and the Marshals Service to the prosecutors' requests for the tapes. That response (described supra), at first whiff, reeks of an attempt to stonewall and cover up.*fn24 I see no legitimate purpose for delaying the production of the tapes to the U.S. Attorney's Office by two months. As AUSA Karas predicted, this delay looks very bad indeed. In particular, I find OEO Director Stephen T'Kach's purported Title III concerns, in light of the possible constitutional scope of the prosecutors' demands, at best unfounded and at worst obstructionist.

  By the time the prosecutors learned of the tapes and first requested them, however, El-Hage's trial and sentencing were completed. Any Jencks Act damage had been done. By that time, no matter how willful or obstructionist the conduct of OEO and the Marshals Service, it simply could not add to any damage already suffered. Accordingly, I believe the intent relevant to this motion is the Government's intent at the time of El-Hage's trial.

  I find great difficulty in determining the Government's intent at this time for one reason. It is clear to me that Inspector Doe then had, and likely still has, no idea that videotapes like the ones he created are extremely likely to contain material discoverable pursuant to Brady, Giglio, Jencks or similar authority.

  On the whole, the testimony I heard impressed upon me the rampant ignorance about disclosure obligations within the Marshals Service. The Government seeks refuge in this ignorance, claiming it necessarily renders the failure to produce inadvertent. According to this argument, "The USMS inspectors, who knew about the tapes, were unaware of the prosecutors' Jencks Act obligations; and the prosecutors, who understood their Jencks Act obligations, were unaware of the tapes until after trial. The failure to produce the statements in the videotapes for trial was, therefore, inadvertent." Although the Government's statement aptly describes some of the relevant circumstances, I do not agree that inadvertence may be so glibly decided.

  In this regard, I remain mindful of the Court of Appeals' admonition that "[t]here simply is no longer any excuse for official ignorance regarding the mandate of the law" with respect to the Government's disclosure obligations. Bufalino, 576 F.2d at 449. I am also guided by the court's direction to government agencies that, "[i]n educating personnel concerning their responsibilities in this area [i.e. disclosure pursuant to the Jencks Act and Fed.R.Crim.P. 16], government agencies must keep in mind the broad definition of discoverable `statements' incorporated in the governing texts." Id.*fn25 Here, eight or nine United States Marshals Service Criminal Investigators were aware (or would have been aware if they were competently performing their jobs) of the videotapes and the fact that they contained debriefings of al-Fadl by prosecutors and agents. Those Criminal Investigators included: Inspector Doe, Supervisory Inspector Mike, Chief Inspector William Wagner, Chief Inspector George Walsh, and four to five Case Managers at USMS headquarters. Additionally two USMS administrative personnel knew of the tapes. Nevertheless, none of these Investigators (including those in senior positions) ever considered, much less acted upon, their obligation to turn the tapes over to prosecutors. Chief Inspector Paonessa (one of the first, and only, USMS personnel to recognize the importance of the tapes and undertake action for their disclosure) summed up the situation succinctly. He testified: "It was shocking to me that a law enforcement officer would not realize" that the tapes might contain 3500 material. I too would be shocked had I not come to learn of the utter dearth of guidance given to Marshals Service Investigators regarding the Government's disclosure obligations.

  Inspector Doe and Supervisory Inspector Mike each testified that they did not recall receiving any training within the last nine to ten years regarding government disclosure obligations. Indeed, as the Government notes, "Supervisory Inspector Mike, a USMS employee for nearly twenty-three years, did not recall ever receiving Jencks Act training, even when he received his initial law enforcement training upon entry into the USMS." This testimony, and that of other USMS personnel indicates that continuing legal training and updates for USMS personnel are, at best, sporadic and quixotic. Given this state of "continuing training," I do not believe Chief Inspector Wagner, Chief Inspector Walsh or the four to five Case Managers on al-Fadl's case were any better informed of their obligations. If they were, I find it incredible that none would have raised a question about turning the tapes over to prosecutors.

  I have no doubt that responsibility for the Inspectors' ignorance of their legal duties lies squarely with those involved in setting Marshals Service policy, most notably the Office of General Counsel and General Counsel Gerald Auerbach. During the hearings on this matter, I sought testimony from Mr. Auerbach who has been ensconced in the Service's Office of General Counsel since 1974. I had hoped his testimony would illuminate the issue of whether the Marshals Service was "educating [its] personnel concerning their responsibilities in [the] area" of disclosure obligations as discussed in Bufalino, 576 F.2d 449. Although Mr. Auerbach's testimony was illuminating, the light shone on a pathetic sight. Mr. Auerbach revealed that the Marshals Service relies upon a trickle-down system to inform Deputies, Inspectors and other USMS personnel of their legal obligations with respect to prisoners, witnesses and defendants. Constitutional and statutory duties are apparently not directly explained to USMS personnel. Rather, these legal duties are purportedly "described" in USMS policies that are "distributed" through posting on some sort of electronic database available only to Marshals Service personnel. Mr. Auerbach and the attorneys in his office typically do not draft these secondhand descriptions; instead, they merely give "advice" to Directors, United States Marshals and other non-lawyer managers who divine the relevant legal precepts and memorialize their understanding of those legal requirements as official Marshals Service policy. Once the policies are drafted, Mr. Auerbach and the lawyers he supervises are responsible for reviewing the policies for "legal sufficiency".*fn26 In addition to this review responsibility, Mr. Auerbach described his job, and that of his office, as little more than responding to requests from senior Marshals Service Personnel.*fn27 The abject failure of this trickle-down system is painfully evident from the current situation. The fact that eight or nine WitSec Inspectors could simultaneously overlook the possibility that twenty-eight hours of videotaped interviews between a witness and prosecutors might constitute discoverable materials illustrates the utter irresponsibility of this system. This laissez-faire approach to "informing" USMS personnel of their legal obligations left the Inspectors entirely ignorant of their duties.

  It is, nevertheless, difficult to say that the WitSec Inspectors, who were never adequately informed of their duty to disclose the tapes, intentionally violated that duty. If the hearings had shown that the Marshals Service made any reasonable attempt to keep its personnel apprised of Government disclosure obligations, one could argue that the WitSec Inspectors acted intentionally in failing to turn the tapes over. It simply makes little sense, however, to ask whether the Inspectors tried to hide something they had no idea they were obliged to produce. To this extent I agree with the Government's argument quoted above. I decline, however, the Government's invitation to find the non-disclosure inadvertent simply because there has been no evidence of a conscious intent to deprive the defense of the tapes.

  Failure to produce Jencks Act material is also deliberate under Hilton where the Government "ignores evidence of such high value that it could not have escaped its attention." 521 F.2d at 166. Neither party has cited, and I have not otherwise discovered, any cases applying this standard in a similar situation. Fortunately, it appears to be rare that government agents are (through the inexcusable nonfeasance of their superiors) wholly ignorant of their disclosure obligations.*fn28 Despite this lack of relevant authority, the proper rule to apply in this situation seems readily apparent to me.

  If the tapes contain material of "such a high value that it could not have escaped [the prosecutors'] attention" had they been given timely access to the tapes, El-Hage is entitled to the lower Hilton standard. I am confident that this rule strikes the proper balance between: (1) ensuring the Government does not reap an unjust benefit from the Marshals Service's inexcusable failure to train its Inspectors; and (2) ensuring that El-Hage's convictions are not overturned on a ...


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