United States District Court, S.D. New York
For Mustafa Kamel Mustafa(1), aka: Mustapha Kamel, Mostafa Kamel Mostafa, Abu Hamza, Abu Hamza al-Masri, Defendants: Jeremy Schneider, Rothman, Schneider, Soloway & Stern, LLP, New York, NY; Joshua Lewis Dratel, Law Offices of Joshua L. Dratel, P.C., New York, NY; Sabrina P. Shroff, Federal Defenders of New York Inc. (NYC), New York, NY.
For Oussama Kassir(3), aka: " Abu Abdullah,", " Abu Khadija,", Defendants: Edgardo Ramos, LEAD ATTORNEY, Day Pitney, L.L.P. (Times Square), New York, NY; Mark Steven DeMarco, LEAD ATTORNEY, Mark S. DeMarco Law Office, Bronx, NY.
For Earnest James Ujaama(4), aka: James Ujaama, Bilal Ahmed, James Earnest Thompson, Abu Sumaya, Abdul Qaadir, Defendants: Frederick H. Cohen, LEAD ATTORNEY, New York, NY; Peter Alan Offenbecher, LEAD ATTORNEY, Skellenger Bender, P.S., Seattle, WA.
OPINION & ORDER
KATHERINE B. FORREST, United States District Judge.
Defendant Mostafa Kamel Mostafa was indicted in 2004 for, inter alia, conspiracy to take hostages, hostage taking, conspiracy to provide and conceal material support and resources to terrorists (the Bly, Oregon jihad training camp), providing and concealing material support to terrorists (the Bly, Oregon jihad training camp), conspiracy to provide material support and resources to a foreign terrorist organization (the Bly, Oregon jihad training camp), providing material support and resources to a foreign terrorist organization (the Bly, Oregon jihad training camp), conspiracy to provide and conceal material support and resources to terrorists (facilitating violent jihad in Afghanistan), providing and concealing material support to terrorists (facilitating violent jihad in Afghanistan), conspiracy to provide material support and resources to a foreign terrorist organization (facilitating violent jihad in Afghanistan), providing material support and resources to a foreign terrorist organization (facilitating violent jihad in Afghanistan), and conspiracy to provide goods and services to the Taliban in violation of the International Emergency Economic Powers Act. (ECF No. 1.) Trial is scheduled to commence on April 14, 2014.
One of the witnesses whom the Government intends to call, Saajid Badat, has refused to come to the United States to testify. (ECF No. 291.) He has agreed, however, to provide testimony under oath by live closed-circuit television (" CCTV" ).
The Government has moved pursuant to Federal Rules of Criminal Procedure 2 and 15 for an order allowing Badat to
testify by live CCTV or by deposition. (ECF No. 238.) The Government contends that Badat is unavailable to testify in person and that his testimony is material. Defendant has opposed the motion, primarily on the basis that the Government has been complicit in maintaining such unavailability. (See, e.g., Mem. of L. in Opp. to Gov't's Mot. (" Def.'s Opp." ), ECF No. 245.)
The Court has thoroughly explored the issue of unavailability and whether circumstances here justify allowing Badat to testify by live CCTV. The Court has held at the forefront of its analysis the defendant's Sixth Amendment right to confront witnesses against him. The Court has carefully considered defendant's arguments regarding the Government's complicity and/or good faith. Based on what has been an elaborate process relating to this issue, the Court grants the Government's motion. Badat will be allowed to testify by live CCTV from the United Kingdom. Defense counsel may be present in person to cross-examine him; the jury shall watch Badat's direct testimony and cross-examination by live CCTV from the courtroom.
I. APPLICABLE LEGAL PRINCIPLES
The Sixth Amendment to the U.S. Constitution states, in part, " In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. Such a right traces its origins back to Roman times and the English common law.
Crawford v. Washington, 541 U.S. 36, 43, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). " The common-law tradition is one of live testimony in court subject to adversarial testing." Id. While testimony taken outside of the courtroom was at times presented at trial in 16th-and 17th-century England, courts developed strict rules of " unavailability" to limit such instances. Id. at 44-45. The Sixth Amendment reflects a goal to eliminate ex parte examination offered as evidence against the accused. Id. at 50. " [T]he Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Id. at 53-54;
see also United States v. Gigante, 166 F.3d 75, 81 (2d Cir. 1999). The Supreme Court has instructed that the Sixth Amendment right to confrontation must be " interpreted with this focus in mind."
Crawford, 541 U.S. at 50.
The Supreme Court has also stated that the confrontation right is a functional one: to promote reliability in criminal trials.
Lee v. Illinois, 476 U.S. 530, 540, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986). " [T]he mechanisms of confrontation and cross-examination advance the pursuit of truth in criminal trials." Id. The Court identified three factors that promote this truth-finding function: the oath that the witness must take, cross-examination of the witness, and the jury's ability to evaluate the witness's demeanor. Id. (quoting California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)).
While in Coy v. Iowa, 487 U.S. 1012, 1016, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), the Supreme Court made the broad statement that the Confrontation Clause " guarantees the defendant a face-to-face meeting with witnesses appearing before
the trier of fact," in Maryland v. Craig, 497 U.S. 836, 850, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), which involved the use of one-way CCTV, the Court indicated that this requirement was " not absolute." In Craig, the Supreme Court noted, " The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Id. at 845. Nevertheless, an accused's Sixth Amendment right to confrontation may be satisfied absent a physical, face-to-face confrontation at trial " where denial of such confrontation is necessary to further an important public policy" (there, the state interest in preventing trauma to child witnesses), and " where the reliability of the testimony is otherwise assured." Id. at 850.
A. Depositions Under Rule 15
The Federal Rules of Criminal Procedure have provided for depositions of certain witnesses since 1975. That rule provides that a court may grant a motion to take a deposition on notice and " because of exceptional circumstances." Fed. R. Crim. P. 15(a)(1). As amended in 2012, the rule requires that, if a deposition is to occur outside the United States and without the defendant's presence, the Court must make five case-specific findings: (1) the witness's testimony could provide substantial proof of a material fact; (2) there is a substantial likelihood that the witness's attendance at trial cannot be obtained; (3) a deposition of the witness in the U.S. cannot be obtained; (4) for an in-custody defendant, secure transportation and ...