The opinion of the court was delivered by: John F. Keenan, United States District Judge
Defendant has filed an "Omnibus Motion" seeking a "Wade" hearing concerning, or suppressing identifications; Jencks Act (18 U.S.C. § 3500) relief; Federal Rule of Evidence ("FRE") 404(b) relief and Roviaro relief (relating to confidential informants). A motion under Federal Rule of Criminal Procedure 12(d)(2) has been withdrawn.
On February 6, 2006, a superseding Indictment ("Indictment") was filed charging Kassir and two alleged co-conspirators, Mustafa Kamel Mustafa, a/k/a "Abu Hamza," a/k/a "Abu Hamza Al-Masri," a/k/a "Mustafa Kamel," a/k/a Mostafa Kamel Mostafa" ("Abu Hamza"), and Haroon Rashid Aswat, a/k/a "Haroon," a/k/a "Haroon Aswat" ("Aswat"). The Indictment contains 19 counts and charges four theories of criminal conduct: a hostage-taking conspiracy, in which Abu Hamza alone is charged (Counts One and Two); a conspiracy to establish a Jihad training camp in the United States, in which Kassir, Abu Hamza, and Aswat are charged (Counts Three through Eight); the establishment of terrorist websites, in which Kassir is charged (Counts Nine through Fourteen); and a conspiracy to facilitate violent Jihad in Afghanistan, in which Abu Hamza is charged. (Counts Fifteen through Nineteen).
The Government hopes to prove at trial the following, as well as other facts.
Abu Hamza was a cleric at a London mosque widely known in England for the Jihadist sermons he delivered. In the fall of 1999, Abu Hamza and a United States citizen agreed that Abu Hamza would send two "brothers" from Great Britain to America to assist in the creation of a Jihad training camp here. The "brothers" were Kassir and Aswat.
On or about November 28, 1999, Kassir and Aswat arrived at John F. Kennedy International Airport. Kassir and Aswat then traveled to Seattle, Washington, where they met the American citizen, and spent approximately three-and-a-half-months in the Pacific Northwest. While in the Pacific Northwest, Kassir and Aswat lived in a Seattle mosque ("the Mosque").
At the Mosque, Kassir gave instruction to small groups of men on certain practical aspects of violent Jihad. Kassir showed the men how to build and use a firearm silencer, and how to conduct effective nighttime surveillance of a moving target. In addition, Kassir and Aswat traveled with the American citizen to a farm complex in Bly, Oregon. This was the proposed location for the Jihad training camp. At Bly, Kassir continued to provide guidance to Mosque associates with the workings of Jihad. Kassir provided instruction on how to kill a man by slitting his throat, and disseminated information from an electronic version of "the Encyclopedia of Jihad."*fn1
Kassir complained that the Bly, Oregon operation was not as substantial as he had been told. He stated that Bly lacked sufficient men and weapons. Frustrated by this, Kassir said that he would kill the United States citizen and dispose of the body in Bly. After a stay of approximately three-and-a-half-months, Kassir and Aswat left the United States.
After leaving America, Kassir worked to establish and then to maintain a number of websites. These websites were allegedly used to disseminate terrorist materials -- including videos showing Jihadis participating in murder and torture, and instructions on how to make bombs and poisons.
On September 25, 2007, Kassir was brought to the United States from the Czech Republic, following an extradition proceeding. He was arraigned on that day and pleaded not guilty.
I. Witness Identifications
By a letter dated February 26, 2008, the Government told the defense that photographs were shown to eleven witnesses by law enforcement agents at various times from 2002 to 2005. Ten of the witnesses correctly recognized a photograph of Kassir. In the Omnibus Motion, the defendant seeks an order precluding these ten witnesses from testifying about the out-of-court identification or identifying him at trial ("Preclusion Motion") and, in the alternative, seeks a hearing, ...