United States District Court, S.D. New York
For Sulaiman Abu Ghayth, Defendant: John P. Cronan, Michael Ferrara, Assistant United States Attorneys, Preet Bharara, UNITED STATES ATTORNEY; Stanley L. Cohen, STANLEY COHEN & ASSOCIATES, LLC; Geoffrey S. Stewart, Zoe Dolan, Ashraf Nubani.
Lewis A. Kaplan, United States District Judge.
The government seeks to introduce at trial against defendant Sulaiman Abu Ghayth (" Abu Ghayth" ) evidence of two out-of-court identifications made by a cooperating witness (" CW" ) and an anticipated in-court identification by the same witness. Abu Ghayth moves to suppress the out-of-court identification and preclude in-court identification or, in the alternative, for an evidentiary hearing under United States v. Wade .
The CW previously pled guilty to a terrorism offense, has been sentenced, and now is cooperating with the government. He claims to have encountered Abu Ghayth at an al Qaeda guest house in Afghanistan in May 2001. During a December 2003 interview with the FBI, the CW reported that he " recalled a speech given at the camp by a Kuwaiti Imam by
the name of SOLEIMAN ABU GAITH. This speech also focused on the obligation to defend the Taliban and to pledge to MULLAH OMAR. When asked if the SOLEIMAN ABU GHAITH that visited the camp was the same individual identified in public media reports as an Al-Qaeda spokesperson, [the CW] stated that it appeared to be the same person. However, ABU GHAITH had a thicker beard at the time he visited the Al-Farooq Camp. [The CW] further noted that he did not know who ABU GHAITH really was until after he returned to the United States and saw his picture in media reporting on Al-Qaeda." 
Approximately eight years later, in March of 2012, the CW provided a similar account to the FBI. In the context of a broader discussion about his time in Afghanistan, the CW told the agents that he encountered Abu Ghayth at an al Qaeda guest house in Kandahar, Afghanistan in 2001. The CW did not know Abu Ghayth's name at that time, but learned his identity after the September 11, 2001 attacks on the World Trade Center and the Pentagon when he appeared in videos alongside Usama Bin Laden.
The FBI again interviewed the CW on May 3, 2012. The CW provided information consistent with his previous interviews and was shown an array of eight individual photographs, one of which purportedly was a photograph of Abu Ghayth. He was asked to identify each of the eight individuals. He was unable to identify six of the eight individuals, but he believed that the seventh photograph was of Abu Ghayth, remarking that it was " possibly . . . the individual that gave the lecture at the incoming guesthouse and was later featured in the post 9/11 video." 
On February 23, 2013, the FBI showed the CW a second photograph array. That array contained six photographs of different individuals, all shown on the same page. Photograph 1 was a contemporaneous photograph of Abu Ghayth. The five remaining photographs were filler images. The CW was asked whether he " recognized any of the individuals in regards to [his] travel to, participation in, and travel from the terrorist training camp in Afghanistan in May of 2001."  He " advised that the individual in photograph 1 looks ...