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United States of America v. Russell Defreitas

January 31, 2011


The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:


Familiarity with the factual background, charges, and procedural history of this case is assumed. See generally United States v. Defreitas et. al., 2010 WL 1850950 (E.D.N.Y. May 6, 2010); United States v. Defreitas et. al., 2010 WL 1223244 (E.D.N.Y. Mar. 24, 2010). Via pretrial memorandum, the government requests empanelment of an anonymous jury and partial sequestration of the jury during trial.*fn1 Pursuant to Rule 16(a)(1)(G) of the Federal Rules of Criminal Procedure and Rules 701 et seq. of the Federal Rules of Evidence, the government also discloses its intent to call two expert witnesses at trial. (See Docket Entry No. 195.)

Defendants jointly oppose the anonymous jury request, and move for an evidentiary hearing on the matter. (See Docket Entry No. 171.) Defendants also jointly object to both of the government's proposed experts.*fn2 (See Docket Entry Nos. 201, 220--22.) Additionally, Defendant Ibrahim alone moves to compel disclosure of certain intelligence material, pursuant to Federal Rule of Criminal Procedure 16 and Brady v. Maryland, 373 U.S. 83 (1963). (See Docket Entry Nos. 170, 190, 195, 201.)

Defendants do not oppose the government's requests regarding partial sequestration- specifically, that the jurors be "kept together during recesses and . . . provided lunch as a group each day during trial," and "escorted to and from the courthouse each day during trial . . . by the United States Marshals Service." (Gov't Mot. 2.) Accordingly, the court exercises its broad discretion to grant these unopposed requests in their entirety. See United States v. Eisen, 974 F.2d 246, 267 (2d Cir. 1992). Furthermore, for the reasons set forth below, the government's anonymous jury request is granted in its entirety, without the need for an evidentiary hearing. Defendants' objections to the government's proposed expert witnesses are overruled. Finally, Ibrahim's motion to compel disclosure is denied.


I.Government's Request for Certain Protective Measures

The government contends that an anonymous jury is necessary for three reasons. First, the government cites to the gravity of the crimes charged in the indictment, arguing that their "serious and violent nature" "would cause a juror reasonably to fear for his or her own safety." (Gov't Mot. 18.) Second, the government notes that both foreign and domestic media coverage of the trial has been extensive, and is likely to "intensify significantly" as the trial draws near.

(Id. at 10.) Third, the government cites to several potential threats to the judicial process itself, some of which stem from defendants' alleged association with the Trinidadian militant group Jamaat al-Muslimeen ("JAM"), and its leader, Yasin Abu Bakr. (Id. at 13.) The government further states that: [a]t least two inmates previously housed with Defreitas at the Metropolitan Detention Center ("MDC") have reported that Defreitas plotted to cause harm to an anticipated government witness and officers of the court. A confidential source who had been housed in the MDC's Special Housing Unit along with Defreitas for several months reported that Defreitas was plotting to have a government witness killed . . . . (Id. at 12; see also id. at 13 n.3 (noting that the confidential source "has previously provided reliable information to the government in several unrelated cases," and also hopes to secure a cooperation agreement).)

Defendants rebut the government's first argument by contending that "a talismanic recitation of terrorism-related words" is insufficient to justify an anonymous jury. (Defreitas Mem. 4.) Regarding the second argument, while they acknowledge that there will likely be a significant amount of media coverage, defendants contend that there is no indication that such coverage "will pose a risk to juror safety." (Id. at 10.) With respect to the government's third argument, defendants describe any connection between themselves and JAM as "tenuous," and dispute the government's allegations as to JAM's or their own ability to disrupt the judicial process. (Id. at 7--9.) Furthermore, Defreitas "vigorously dispute[s] [the] accusation that [he] plotted to harm any witnesses in this case or others involved in court proceedings." (Id. at 6.)

A. Legal Standards

As a general matter, a district court "has broad discretion to take such steps as may be necessary and appropriate to permit the jury to concentrate on the trial proceedings and to evaluate the evidence in an atmosphere free from apparent threat or danger, so long as those steps do not violate the defendant's fundamental rights." United States v. Maldonado-Rivera, 922 F.2d 934, 971 (2d Cir. 1990). Specifically, anonymous juries may be appropriate when "genuinely called for and properly used." United States v. Vario, 943 F.2d 236, 239 (2d Cir. 1991). While a district court has broad discretion to impanel anonymous juries, see United States v. Aulicino, 44 F.3d 1102, 1116 (2d Cir. 1995), "the Second Circuit has . . . recognized that [they] may undermine the presumption of innocence and interfere with the defendant's ability to conduct an effective voir dire." GORDON MEHLER, JAMES GLEESON & DAVID C. JAMES, FEDERAL CRIMINAL PRACTICE: A SECOND CIRCUIT HANDBOOK 501 (10th ed. 2010) (citing United States v. Wong, 40 F.3d 1347, 1376 (2d Cir. 1994)). For this reason, the use of anonymous juries must "receive close judicial scrutiny and be evaluated in the light of reason, principle, and common sense." United States v. Thomas, 757 F.2d 1359, 1363 (2d Cir. 1985)). Such scrutiny requires a court to balance the defendants' interests in maintaining the presumption of innocence and discovering potential juror biases against the public's interest in a fair and reliable judicial process. See United States v. Amuso, 21 F.3d 1251, 1264 (2d Cir. 1994).

Factors that courts have considered in determining whether to impanel an anonymous jury include: (1) a defendant's demonstrated "willingness to tamper with the judicial process," such as threats made to witnesses or informants; (2) the dangerousness of a defendant as demonstrated by the seriousness of the crimes charged; and (3) the anticipated media coverage. United States v. Quinones, 511 F.3d 289, 296 (2d Cir. 2007); see United States v. Wilson, 493 F. Supp. 2d 397, 398 (E.D.N.Y. 2006); see also United States v. Khan, 591 F. Supp. 2d 166, 169 (E.D.N.Y. 2008) (compiling case law). If a court, based on an evaluation of these factors, determines that an anonymous jury is warranted, it must protect the defendant's fundamental rights by conducting voir dire in a manner "designed to uncover bias as to issues in the cases and as to the defendant," and provide the jurors with a "plausible and non-prejudicial reasonfor not disclosing their identities." United States v. Thai, 29 F.3d 785, 801 (2d Cir. 1994); see also United States v. Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991).

B. Analysis

With respect to the first anonymous jury factor, "[e]vidence of threats made to witnesses, informants or jurors in current or prior cases demonstrates a willingness on the part of the defendant to tamper with the judicial process." Khan, 591 F. Supp. 2d at 169; see also Paccione, 949 F.2d at 1192--93 (affirming decision to impanel anonymous jury where threats were made against government witnesses).Here, the government has proffered that "Defreitas identified two individuals-by name-in the New York metropolitan area willing to carry out his plan to kill a government witness and an officer of the court." (Gov't Reply 4.) It further proffered how this information was corroborated by sources outside the MDC. (Id.) The government provided additional details of these threats under seal. (See Docket Entry No. 183.)

The court is unwilling to risk the integrity of the judicial process by failing to credit such reports, even if they did originate with jailhouse informants. See United States v. Wong, 40 F.3d 1347, 1376--77 (2d Cir. 1994). It is important to note that JAM's agenda, reach and abilities are not determinative factors in this decision, as the allegation credited by the court is not that a Caribbean-based criminal organization poses some theoretical threat to the United States, but rather that Defreitas has ties to local individuals with the desire to affect the outcome of thistrial. (See Gov't Reply 4.)

With respect to the second factor, it would be difficult to overstate the gravity of the allegations at bar. Defendants are charged with several conspiracies relating to a planned attack on John F. Kennedy International Airport. If successful, this attack could have paralyzed a major U.S. and international transportation hub, destroyed a fuel pipeline stretching from Pennsylvania through New Jersey and the Eastern District of New York, and killed or injured thousands. While defendants are correct that the mere invocation of the word "terrorism" is insufficient on its own to justify an anonymous jury, the seriousness of the charges is among the factors a court may consider in balancing the competing interests at stake. See Khan, 591 F. Supp. 2d at 170; see also Quinones, 511 F.3d at 296.

The third and final factor also weighs in favor of impaneling an anonymous jury. "Consistent media coverage, even if minimal, provides support for anonymity as coverage enhances 'the possibility that jurors' names would become public and thus expose them to intimidation by defendants' friends or enemies, or harassment by the public.'" Khan, 591 F. Supp. 2d at 171 (quoting Vario, 943 F.2d at 240); see also Paccione, 949 F.2d at 1192--93 (discussing risk of media's "inappropriate contact" with jurors). It is expected that there will be daily, extensive media coverage of this trial. In addition to the numerous news reports that have already been published, the court is well aware that even the pre-trial status conferences, suppression hearings and oral arguments in this case have attracted numerous observers. The large Trinidadian- and Guyanese-descended populations in the Eastern District of New York can only serve to increase the level of local media attention, given that some of the defendants are Guyanese nationals and were arrested in Trinidad. Furthermore, the current public debate on whether to try those accused of involvement in the September 11, 2001 attacks in federal courtspecifically, in the districts encompassing this cityensures an even greater amount of media attention for this trial, further tilting the balance of interests in favor of the government's motion.

In sum, the balance of factors in this case weighs strongly in favor of an anonymous jury, and the court therefore exercises its broad discretion to impanel one. See Aulicino, 44 F.3d at 1116. In light of the government's submissions on this matter, there is no need for an evidentiary hearing. See Khan, 591 F. Supp. 2d at 172; see also Aulicino, 44 F.3d at 1116 (affirming similar decision without hearing).

With respect to the protection of defendants' fundamental rights, the parties jointly drafted a questionnaire consisting of one hundred questions for each potential juror to complete.*fn3

(See Docket Entry No. 198.) They were given an opportunity to review the completed questionnaires, and the court then held a hearing at which it entertained their respective motions to strike potential jurors for cause, based solely on the questionnaire responses. Following this hearing, the parties submitted follow-up questions for the remaining jurors, and were present for the entirety of the court's subsequent two-week questioning of these jurors. After the court selected a suitable pool of jurors and alternates, the parties were given the opportunity to exercise their peremptory challenges in accordance with the Federal Rules of Criminal Procedure. Such a comprehensive, lengthy voir dire unquestionably gave defendants a meaningful opportunity to discover any potential juror bias, and substantially diminished the chance of any infringement on their fundamental rights resulting from the empanelment of an anonymous jury. See Thai, 29 F.3d at 801. Significantly, as noted by the government, defendants have not indicated how knowing a juror's name, address, or employer's address would have meaningfully aided them in detecting any juror bias. (See Gov't Reply 6.)

As a final matter, in order to further protect defendants' rights, the court will explain the purpose of anonymity to the jury in terms carefully designed to both provide a "neutral and non- prejudicial reason" for non-disclosure of their identities, and not introduce any bias against the ...

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