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United States v. Ghailani

United States Court of Appeals, Second Circuit

October 24, 2013

UNITED STATES of America, Appellee,
Ahmed Khalfan GHAILANI, a/k/a Fupi, a/k/a Abubakary Khalfan Ahmed Ghaliliani, Defendant-Appellant, Wadih El Hage, a/k/a Abdus Sabbur, Fazul Abdullah Mohammed, a/k/a Harun Fazhl, a/k/a Fazhl Abdullah, a/k/a Fazhl Khan, Mohamed Sadeek Odeh, a/k/a Abu Moath, a/k/a Noureldine, a/k/a Marwan, a/k/a Hydar, Mohamed Rashed Daoud Al-'Owhali, a/k/a Khalid Salim Saleh Bin Rashed, a/k/a Moath, a/k/a Abdul Jabbar Ali Abel-Latif, Usama Bin Laden, a/k/a Usamah Bin-Muhammad Bin-Ladin, a/k/a Shaykh Usamah Bin-Ladin, a/k/a Mujahid Shaykh, a/k/a Hajj, a/k/a Qaqa, a/k/a The Director, Muhammad Atef, a/k/a Abu Hafs, a/k/a Abu Hafs El Masry, a/k/a Abu Abu Hafs El Masry E. Khabir, a/k/a Taysir, a/k/a Aheikh Taysir Abdullah, Mustafa Mohamed Fadhil, a/k/a Mustafa Ali Elbishy, a/k/a Hussein, a/k/a Hassan Ali, Khalfan Khamis Mohamed, a/k/a Khalfan Khamis, Sheikh Ahmed Salim Swedan, a/k/a Sheikh Bahamadi, a/k/a Ahmed Ally, Mamdouh Mahmud Salim, a/k/a Abu Hajer Al Iraqi, a/k/a Abu Hajer, Ali Mohamed, a/k/a Omar, a/k/a Ali Abdelseoud Mohamed, a/k/a Abu Omar, a/k/a Haydara, a/k/a Taymour Ali Nasser, a/k/a Ahmed Bahaa Adam, Ayman Al Zawahiri, a/k/a Abdel Muaz, a/k/a The Doctor, Khaled Al Fawwaz, a/k/a Abu Omar, a/k/a Khaled Abdul Khaled Abdul Rahman, a/k/a Hamad Al Fawwaz, Hamad, Ibrahim Eidarous, a/k/a Ibrahim H.A. Eidarous, a/k/a Daoud, a/k/a Abu Abdullah, a/k/a Ibrahim, Bary, a/k/a Adel M.A.A.A. Bary, a/k/a Abbas, a/k/a Abu Dia, a/k/a Adel, Saif Al Adel, a/k/a Saif, Abdullah Ahmed Abdullah, a/k/a Abu Mohamed El Masry, a/k/a Saleh, a/k/a Abu Marium, Muhsin Musa Matwalli Atwah, a/k/a Abdel Rahman Al Muhajer, a/k/a Abdel Rahman, Anas Al Liby, a/k/a Nazih Al Raghie, a/k/a Anas Al Sebai, L'houssiane Kherchtou, a/k/a Abu Talal, a/k/a Talal, a/k/a Yusuf, a/k/a Joseph, a/k/a Jamal, Mohamed Suleiman Al Nalfi, a/k/a Nalfi, a/k/a Abu Musab, a/k/a Mohamed Suleiman Adam, Jamal Ahmed Mohammed Al-Badawi, a/k/a Abu Abed Al Rahman Al-Badawi, Fahd Al-Quso, a/k/a Abu Hathayfah Al-Adani, Defendants.

Argued: May 8, 2013.

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Peter Enrique Quijano (Nancy Lee Ennis, Anna N. Sideris, on the brief), Quijano & Ennis, P.C., New York, NY, for Defendant-Appellant.

Michael Farbiarz, Assistant United States Attorney (Harry A. Chernoff, Nicholas J. Lewin, Sean S. Buckley, Katherine Polk Failla, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Before: LEVAL, CABRANES, and PARKER, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

Defendant Ahmed Khalfan Ghailani appeals his judgment of conviction, entered January 25, 2011, after a trial by jury in the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge ), of conspiring to bomb the United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. The bombings, which occurred simultaneously on August 7, 1998, killed over two hundred people, and injured thousands more.

This appeal presents a question bound to arise from the government's efforts to obtain actionable and time-sensitive intelligence necessary to thwart acts of terror, while still bringing those charged with committing crimes of terrorism against Americans to justice in an orderly fashion under the laws of our country. We are asked whether the Speedy Trial Clause of the Sixth Amendment of the Constitution prevents the United States from trying, on criminal charges in a district court, a defendant who was held abroad for several years by the Central Intelligence Agency (" CIA" ) and the Department of Defense while his indictment was pending.[1]

To determine whether trial delays caused a violation of a defendant's constitutional speedy trial right, we must, in each case, consider the public and private interests at stake by balancing four factors set forth by the Supreme Court. Those factors are: (1) the length of the delay; (2) the reasons for the delay; (3) whether the defendant asserted his right in the run-up

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to the trial; and (4) whether the defendant was prejudiced by the failure to bring the case to trial more quickly.

We conclude that, based upon a balancing of these four factors, the District Court correctly determined that, in the circumstances presented here, there was no violation of Ghailani's right under the Speedy Trial Clause of the Sixth Amendment. In so holding, we reject Ghailani's claim that the government may never, no matter how expeditiously it acts, bring a defendant to trial after detaining him for national security purposes. We also reject Ghailani's argument that the delay occasioned by national security concerns and preparations for trial before a military commission was so excessive as to bar the government from thereafter proceeding to trial. For well over a century, the Supreme Court has repeatedly held that the government may purposely delay trials for significant periods of time, so long as, on balance, the public and private interests render the delay reasonable. We also reject Ghailani's argument that he was prejudiced for constitutional speedy trial purposes by his treatment during his detention by the CIA. The Speedy Trial Clause protects defendants against prejudice caused by delays in their trials, not against the harms of interrogation.

Additionally, we address whether the District Court erred in (1) giving the jury a " conscious avoidance" instruction; and (2) sentencing the defendant to life in prison.

As for the conscious avoidance instruction, which permitted the jury to convict Ghailani if he purposely avoided confirming the likely goals of the criminal conspiracy, Ghailani argues that there was insufficient evidence for a rational juror to infer that he was aware of the likelihood that his efforts would contribute to the bombing of American embassies. This claim has no merit, and we hold that the District Court did not err in so charging the jury.

As for Ghailani's sentence, we conclude that a sentence of life imprisonment, based on a conviction for conspiring to destroy United States buildings and property and directly or proximately causing the deaths of 224 people, was neither procedurally nor substantively unreasonable.


On August 7, 1998, operatives of al Qaeda [3] simultaneously detonated explosives

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at the United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. In Nairobi, the bombs killed two hundred and thirteen people, and injured approximately four thousand more. In Dar es Salaam, eleven died and eighty-five were injured.[4]

Sometime in 1996 or 1997, Ghailani and three other men— Fahid Mohammad Ally Msalam (" Msalam" ), Sheikh Ahmed Swedan (" Swedan" ), and Khalfan Khamis Mohamed (" K.K. Mohamed" )— were recruited by al Qaeda to serve as its " East Africa crew," including serving as the logistics team for the bombings of the two American embassies. During 1997 and 1998, until the time of the bombings, Ghailani lived in Dar es Salaam. In the months leading up to the bombings, Ghailani procured a number of items necessary for building an explosive device on the back of a truck. First, Ghailani, accompanied by Msalam, purchased seven large metal tanks filled with flammable gas from two welders in Dar es Salaam. Second, Ghailani, this time accompanied by Swedan, bought a Nissan Atlas refrigeration truck from a broker with whom he was friendly. After the refrigeration unit had been removed, he had a welder install a stand for two large batteries, which was enclosed in a lockable compartment, and make several other unusual modifications to the truck. Finally, Ghailani hid blasting caps— small explosive devices that are often used to detonate larger secondary explosives— in a locked armoire in his home. These materials were ultimately brought to a private compound in Dar es Salaam, which had been rented by K.K. Mohamed and another conspirator, where the explosives were assembled and the Nissan Atlas was outfitted for its purpose.[5]

Ghailani did not remain in Dar es Salaam to witness the fruits of his labor. Just a day prior to the bombings, Ghailani, using a false passport, boarded a plane with several al Qaeda leaders and flew to Karachi, Pakistan. Several of Ghailani's coconspirators were captured soon after the bombings. See generally In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 101-08 (2d Cir.2008). Although Ghailani was not among those captured, he was indicted along with them on December 16, 1998. The captured coconspirators were subsequently tried and convicted in the United States District Court for the Southern District of New York (Leonard B. Sand, Judge ) for their roles in the bombings.

Although Ghailani was indicted along with his associates in 1998, he eluded authorities for the next six years. Throughout that time— which included the attacks on the World Trade Center on September 11, 2001— Ghailani remained an active and engaged member of al Qaeda. He was finally captured abroad on July 25, 2004, and was held outside of the United States for approximately two years by the CIA. Judge Kaplan made the following factual findings regarding this period:

Ghailani was detained and interrogated by the CIA outside of the United

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States for roughly two years. Many details of the [CIA's interrogation program] and its application to specific individuals remain classified. Nevertheless, it may be said that it sought to obtain critical, real-time intelligence about terrorist networks and plots by using a combination of so-called " standard" and " enhanced" interrogation techniques to question detainees thought to have particularly high-value intelligence information. These techniques were " designed to psychologically ‘ dislocate’ the detainee, maximize his feeling of vulnerability and helplessness, and reduce or eliminate his will to resist [the United States government's] efforts to obtain critical intelligence."
An individualized interrogation program was developed and approved for each detainee based on the unique personal, physical, and psychological characteristics of that individual. Not all interrogation techniques were used on all detainees. To the extent that they are relevant to the disposition of this motion, the details of Ghailani's experience in the CIA [interrogation program]— in particular, the specific interrogation techniques applied to him— are described in [a separate classified supplement]. Suffice it to say here that, on the record before the Court and as further explained in the [classified supplement], the CIA Program was effective in obtaining useful intelligence from Ghailani throughout his time in CIA custody.

United States v. Ghailani, 751 F.Supp.2d 515, 522-23 (S.D.N.Y.2010) (quoting the Draft Office of Medical Services Guidelines on Medical and Psychological Support to Detainee Interrogations) (footnotes omitted) (second alteration in original).[6]

In September 2006, the CIA transferred Ghailani to the custody of the Department of Defense at Guantanamo Bay. In March 2007, a Combatant Status Review Tribunal (" CSRT" ), comprised of three commissioned officers, held a hearing to review whether Ghailani was properly being held as a so-called " enemy combatant," [7] and

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soon after, confirmed Ghailani's status as an enemy combatant. Almost exactly one year later, in March 2008, the government brought charges against Ghailani before a military commission for violations of the laws of war, in connection with the bombing of the embassy in Dar es Salaam and with his efforts as a part of al Qaeda in the years during which he remained a fugitive.

Military counsel was appointed for Ghailani in April 2008. In the months that followed, he worked separately with civilian lawyers to file in federal court two petitions— in May and in July 2008— for writs of habeas corpus. In neither petition did Ghailani refer to the right to a speedy trial, much less claim a violation of that right. In October 2008, Ghailani was arraigned before the Military Commission, and motion practice began. These proceedings only lasted a few months, however, because soon after taking office, President Obama suspended the military commissions by executive order.

Several months later, in March 2009, Ghailani asserted, for the first time, a right to a speedy trial in a third petition for habeas corpus, this time filed pro se in the Southern District of New York. In May, the government announced that it would try Ghailani in the Southern District of New York on the original indictment of 1998. He was then brought to New York and arraigned on June 9, 2009.

Ghailani, represented by counsel, subsequently moved to dismiss the indictment on the ground that the Speedy Trial Clause of the Sixth Amendment precluded the government from proceeding against him, inasmuch as he had been held for nearly five years by the United States before being presented for trial. In a careful and thoughtful Opinion issued on July 13, 2010, the District Court denied the motion. Specifically, Judge Kaplan concluded that, " [c]onsidering all of the circumstances, particularly the lack of significant prejudice of the sort that the Speedy Trial Clause was intended to ...

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