United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
M. Cogan, U.S.D.J.
me is the Government's unopposed motion for an anonymous jury
in the trial of this matter. Specifically, the Government
specifically requests that the names, addresses, and
workplaces of members of the venire and
petit juries not be revealed. The Government has
also proposed the use of a jury questionnaire as a means of
limiting the possible prejudice posed to defendant by use of
an anonymous jury. Many courts, including this Court, have
concluded that anonymous juries and the use of jury
questionnaires are appropriate in terrorism cases. This case
is no different, and for the reasons below, the
Government's unopposed motion is granted.
allegedly a member of al Qaeda, is charged with use of
explosives; conspiracy to murder U.S. nationals; conspiracy
to use a weapon of mass destruction; conspiracy to use a
weapon of mass destruction by a U.S. national; conspiracy to
bomb a U.S. government facility; conspiracy to provide,
attempting to provide, and providing material support to
terrorists; and conspiracy to provide, attempting to provide,
and providing material support to al Qaeda.
district court has broad discretion to empanel an anonymous
jury if the court, after consideration of the issue,
“(a) conclud[es] that there is strong reason to believe
the jury needs protection, and (b) tak[es] reasonable
precautions to minimize any prejudicial effects on the
defendant and to ensure that his fundamental rights are
protected.” United States v. Pica, 692 F.3d
79, 88 (2d Cir. 2012) (quoting United States v.
Gotti, 459 F.3d 296, 345 (2d Cir. 2006)). As to the
first Pica element, “[i]n determining whether
there is a strong reason to believe that the jury needs
protection, courts should consider several factors, including
whether (1) the charges against the defendants are serious,
(2) there is a substantial potential threat of corruption to
the judicial process, and (3) considerable media coverage of
the trial is anticipated.” United States v. Al
Fawwaz, 57 F.Supp.3d 307, 309 (S.D.N.Y. 2014) (internal
quotation marks omitted) (citing United States v.
Quinones, 511 F.3d 289, 296 (2d Cir. 2007); United
States v. Tomero, 486 F.Supp.2d 320, 322 (S.D.N.Y.
it is unclear whether any of these factors individually
justify impaneling an anonymous jury, there are numerous
cases indicating that anonymity is appropriate when some
combination of these factors is present.” United
States v. Pugh, 150 F.Supp.3d 218, 222 (E.D.N.Y. 2015)
(internal quotation marks omitted) (quoting United States
v. Khan, 591 F.Supp.2d 166, 169 (E.D.N.Y. 2008)).
considering the considerations in Pica, I have
concluded that the balance of the interests weighs in favor
of empaneling an anonymous jury. Regarding the first element,
whether there is a strong reason to believe that the jury
needs protection, the Al Fawwaz factors have all
been met. First, it is undisputed that defendant is charged
with extremely serious crimes. Second, there is a substantial
potential threat of corruption to the judicial process.
Although the “mere incantation” of the words
“terrorism, ” “terrorist, ” or
“al Qaeda” are insufficient alone to justify an
anonymous jury, United States v. Mostafa, 7
F.Supp.3d 334, 337 (S.D.N.Y. 2014), the specific charges in
this case raise a “reasonable likelihood that the
pervasive issue of terrorism would raise in the jurors'
minds a fear for their individual safety.” United
States v. Stewart, 590 F.3d 93, 125 (2d Cir. 2008). If
the jurors' identities are publicly available, they may
experience fear of retaliation, either personally or to their
families, from a member of al Qaeda or a member of another
terrorist group. This fear could impact the jurors'
abilities to adequately perform their duties and weighs in
favor of an anonymous jury. See id. (noting that
“the reasonable likelihood that the pervasive issue of
terrorism would raise in the jurors' minds a fear for
their individual safety”).
this trial is expected to generate considerable media
coverage. Major newspapers and television networks reported
on defendant's transfer to the United States for
prosecution and the charges against him, and there is every
indication that when this case goes to trial, it will
generate a substantial amount of publicity. The Second
Circuit has held on several occasions that the expectation of
publicity at trial weighs in favor of anonymity to avoid the
jurors' exposure “to inappropriate contacts that
could compromise the trial.” United States v.
Paccione, 949 F.2d 1183, 1193 (2d Cir. 1991). An
anonymous jury will lessen the concerns potential jurors
would have about their service because they would be
confident that they will not be exposed to media attention.
the satisfaction of all of the Al Fawwaz factors
solidifies my conclusion “that there is strong reason
to believe the jury needs protection.” Pica,
692 F.3d at 88. The inquiry then continues to what
“reasonable precautions” the Court can take
“to minimize any prejudicial effects on the defendant
and to ensure that his fundamental rights are
protected.” Id. Although the empaneling of an
anonymous jury presents the possibility of unfair prejudice
to a defendant, nonetheless, “the use of an anonymous
jury does not infringe a defendant's constitutional
rights, so long as the court conducts a careful voir
dire designed to uncover any bias as to the issues or
the defendant and takes care to give the jurors a plausible
and nonprejudicial reason for not disclosing their
identities.” United States v. Aulicino, 44
F.3d 1102, 1116 (2d Cir. 1995). Accordingly, to protect
defendant's rights, the voir dire will include
the use of a jury questionnaire, as the Government has
proposed and as this Court has previously used in the past.
The jury questionnaire will give the parties ample
information about the backgrounds and possible biases of
potential jurors. Moreover, the jurors will be informed that
the Court is empaneling an anonymous jury to protect their
privacy due to heightened media interest in this case.
Court grants the Government's motion for an anonymous
jury and directs that the names, addresses, and workplaces of
members of both the venire and the petit
jury not be revealed to the parties. The parties have
already been given the schedule for submitting the proposed
jury questionnaire, in addition to the schedule for jury
selection. See ECF Order dated February 23, 2017.
 Defendant's time to oppose expired
on June 14, 2017. See E.D.N.Y. Local Criminal ...