United States District Court, S.D. New York
Sean S. Buckley, Adam Fee, Nicholas J. Lewin, Stephen J. Ritchin, Assistant United States Attorneys, Preet Bharara, UNITED STATES ATTORNEY.
Bobbi C. Sternheim, John Robinson, LAW OFFICES OF BOBBI C. STERNHEIM. David V. Kirby, Barbara E. O'Connor, O'CONNOR & KIRBY, PC, Attorneys for Defendant Khalid al Fawwaz.
LEWIS A. KAPLAN, District Judge.
On August 7, 1998, the United States embassies in Nairobi, Kenya, and Dares Salaam, Tanzania were bombed, killing 224 individuals and injuring thousands more. Defendant Khalid al Fawwaz was indicted for, among other things, conspiring with Usama bin Laden and others to kill Americans abroad by bombing the United States embassies in Nairobi and Dares Salaam and by other means. A five-week trial commenced on January 20, 2015.
After the jury was charged, told that it would receive a copy of the indictment, and retired to deliberate, al Fawwaz for the first time raised concerns regarding the scope of the indictment to be provided to the jury. Al Fawwaz argued principally that the government should redact from the 148-page indictment any allegations that had not been subject to proof at trial. When the government acquiesced and redacted the portions of the indictment that it had not attempted to prove at trial, al Fawwaz then claimed that the submission of a shorter, redacted version of that indictment would unduly prejudice him. Ultimately, the Court elected not to provide the jury with either the original indictment or a redacted version of it. It instead read aloud to the jury certain overt acts from the indictment that al Fawwaz agreed had been subject to proof at trial. Al Fawwaz immediately moved for a mistrial, which the Court denied from the bench. This opinion sets out the context and bases for that ruling.
The indictment on which al Fawwaz was tried was 148 pages long and contained 308 counts. Al Fawwaz, however, was charged only in four counts: conspiracy to kill United States nationals (Count One), conspiracy to kill officers and employees of the United States and internationally protected persons (Count Three), conspiracy to destroy buildings and property of the United States (Count Five), and conspiracy to attack national U.S. defense premises and utilities (Count Six). Counts One, Three, and Six - but not Count Five - required the government to prove that at least one overt act was performed in furtherance of the relevant conspiracy. Paragraph 12 of the indictment, which was incorporated into all four counts charging al Fawwaz, alleged nearly two hundred overt acts.
The Charge Conference and Jury Charge
The Court distributed a draft jury charge to the parties on February 17, 2015. It included the following instruction: "The government may satisfy the overt act element with respect to Counts One, Three and Six by proving one of the overt acts alleged in paragraph 12 of the Indictment." It cautioned, however, that "[t]he Indictment is not evidence" and repeatedly emphasized the burden of proof and the presumption of innocence. Neither party objected to these instructions at the charge conference the following day. Nor did al Fawwaz voice any concern with the jury receiving the indictment to review, among other things, the overt acts alleged in paragraph 12.
On February 23, 2015, immediately prior to charging the jury, the Court asked the government if it had prepared a redacted indictment. The government reported that it was in the process of preparing one and would confer with defense counsel.
The Court proceeded with the charge. The jury was told that it would "have a copy of the indictment in the jury room, at least the parts of it that concern you, " and that "on those counts that require an overt act, the government may, but it need not, prove one of the overt acts that are alleged in paragraph 12 of the indictment, which you haven't seen yet, but you will." The Court further instructed the jury that "allegations of the indictment... are subject to proof or lack thereof just like anything else" and that al Fawwaz "is presumed innocent throughout your deliberations until such time, if ever, that you as a jury are satisfied that the government has proven the defendant guilty beyond a reasonable doubt." Again, neither party objected to these instructions nor requested additional clarification. The jury then began deliberations.
Developments During Deliberations
After the jury retired, the Court again asked whether the parties had settled on a redacted version of the indictment to provide to the jury. The government informed the Court that it was "going to work with the defense to get that as soon as possible." Defense counsel did not object, but merely requested that the Court "charge the jury again ...