Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 1 of 22. UNITED STATES OF AMERICA : S14 98 Cr (LAK)

Transcription

1 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 1 of 22 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA : S14 98 Cr (LAK) - v. - : SULAIMAN ABU GHAYTH, : a/k/a Salman Abu Gayth, : Defendant. : x GOVERNMENT S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR A WITNESS TO TESTIFY AT TRIAL UNDER A PSEUDONYM AND FOR OTHER PROTECTIVE RELIEF John P. Cronan Nicholas Lewin Michael Ferrara Assistant United States Attorneys - Of Counsel - PREET BHARARA United States Attorney Southern District of New York

2 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 2 of 22 TABLE OF CONTENTS I. PRELIMINARY STATEMENT...1 II. THE COURT SHOULD PERMIT THE CW TO TESTIFY UNDER A PSEUDONYM AND ORDER OTHER PROTECTIVE RELIEF...2 A. Background on the CW...2 B. Applicable Law...3 C. Argument...4 III. CONCLUSION...17

3 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 3 of 22 Federal Cases TABLE OF AUTHORITIES Alford v. United States, 282 U.S. 687 (1931)... passim Alvarado v. Surge, 05 Civ (AKH), 2006 WL (S.D.N.Y. June 30, 2006)...3 Chambers v. Mississippi, 410 U.S. 284 (1973)...3 Clark v. Ricketts, 958 F.2d 851 (9th Cir. 1992)...13, 14 Cotto v. Fischer, 09 Civ (SAS) (MHD), 2012 WL (S.D.N.Y. Aug. 23, 2012)...3, 11 Delaware v. Fensterer, 474 U.S. 15 (1985)...12 Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)...3, 6 Giglio v. United States, 405 U.S. 150 (1972)...1, 8 Martinez v. Brown, 08 Civ (RMB) (GWG), 2009 WL (S.D.N.Y. June 8, 2009)...11 Nelson v. Crowley, No. 07 Civ. 849 (RJS), 2009 WL (S.D.N.Y. Feb. 23, 2009)...11 Pointer v. Texas, 380 U.S. 400 (1965)...3 Siegfriedt v. Fair, 982 F.2d 14 (1st Cir. 1992)...16 Smith v. State of Illinois, 390 U.S. 129 (1968)... passim United States v. Abu Marzook, 412 F. Supp. 2d 913 (N.D. Ill. 2006)...12, 13, 14, 16 United States v. Alston, 460 F.2d 48 (5th Cir. 1972)...16 United States v. Cavallaro, 553 F.2d 300 (2d Cir. 1977)...4, 8 United States v. Celis, 608 F.3d 818 (D.C. Cir. 2010)...11 United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011)...12, 13, 14

4 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 4 of 22 United States v. George, Nos (RCL), (RCL), 1992 WL (D.D.C. July 29, 1992)...16, 17 United States v. Grant, 04 Cr. 207 (BSJ) (S.D.N.Y.)...11 United States v. Hernandez, No. S1 12 Cr. 809 (PKC), 2013 WL (S.D.N.Y. July 29, 2013)...9 United States v. Jacobson, 785 F. Supp. 563 (E.D.V.A. 1992)...9, 10, 17 United States v. Kaufman, Nos. CRIM.A , CRIM.A , 2005 WL (D. Kan. Oct. 17, 2005)...16 United States v. Marti, 421 F.2d 1263 (2d Cir. 1970)... passim United States v. Miranda, S10 05 Cr. 189 (GBD) (S.D.N.Y.)...11 United States v. Palermo, 410 F.2d 468, 472 (7th Cir. 1969)...14 United States v. Ramos-Cruz, 667 F.3d 487 (4th Cir. 2012)...14 United States v. Watson, 599 F.2d 1149 (2d Cir. 1979)...3, 4, 10, 11 Washington v. Walsh, 08 Civ (DAB), 2010 WL (S.D.N.Y. Feb. 5, 2010)...3, 11 Constitutional Provision U.S. Const. amend VI...3 Federal Statutes 18 U.S.C , 8 18 U.S.C Federal Rules Federal Rule of Criminal Procedure

5 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 5 of 22 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA : S14 98 Cr (LAK) - v. - : SULAIMAN ABU GHAYTH, : a/k/a Salman Abu Ghayth, : Defendant. : x I. PRELIMINARY STATEMENT The Government respectfully submits this memorandum of law in support of its motion for an order permitting a cooperating witness (the CW ) who currently is at liberty and living with his family to testify at trial under a pseudonym and for other protective relief. These measures, while unusual, are appropriate in light of the unique risks of harassment and safety that the CW and his family would face were the CW to testify publicly under his true identity at this high-profile prosecution of an allegedly prominent and influential member of al Qaeda. The Government has carefully crafted the proposed protective procedures to limit any conceivable prejudice to the defense, while addressing the CW s reasonable harassment and safety concerns. The Government today is providing the CW s true name and town of residence to the defense in the attached sealed declaration from one of the prosecutors on the case, and proposes that it will provide any material that falls within the scope of Title 18, United States Code, Section 3500 and Giglio v. United States, 405 U.S. 150 (1972), upon entry of a protective order that is, prior to when the defense would otherwise receive that information, and therefore ensuring that the defense has ample time to conduct a meaningful and thorough investigation of 1

6 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 6 of 22 the CW. While the protective order would prohibit the defense team which includes counsel, staff, translators, investigators, and the defendant from publicly disseminating the CW s name and town of residence, it would not restrict the defense s ability to effectively investigate the CW s background. 1 Given that the CW s anticipated testimony will focus on his time in Afghanistan where he used an alias and effectively never used his real name, testimony about his true name and town of residence is particularly immaterial in this case. As a result, should the Court grant the Government s request, the Government proposes that the jury not be advised that the CW is testifying under a pseudonym and that the defense be precluded from questioning the CW about his town of residence. II. THE COURT SHOULD PERMIT THE CW TO TESTIFY UNDER A PSEUDONYM AND ORDER OTHER PROTECTIVE RELIEF A. Background on the CW The CW s testimony at trial will center around his time in Afghanistan in mid-2001, including the CW s encounter with the defendant at an al Qaeda guest house in Kandahar, the CW s receipt of basic weapons training at an al Qaeda training camp, and the CW s interactions with Usama Bin Laden during which Bin Laden revealed al Qaeda s intention to attack America. The CW was arrested on terrorism charges following his return to the United States, and later pled guilty pursuant to a cooperation agreement with the Government. The CW has now completed his sentence, including his term of supervised release, and is at liberty living with his family. Additional details concerning the CW s anticipated testimony, the CW s cooperation, and the CW s concerns with testifying in open court under his actual identity are articulated in the attached Declaration of John P. Cronan, dated January 31, 2014 (the Cronan Declaration ), which is requested to be filed under seal. 1 A proposed protective order is attached as Exhibit A. 2

7 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 7 of 22 B. Applicable Law The Confrontation Clause of the Sixth Amendment provides that, [i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.... U.S. Const. amend VI. This right of confrontation includes a defendant s right of cross-examination of witnesses against him. See Pointer v. Texas, 380 U.S. 400, 404 (1965). However, the right of confrontation is not absolute... [and i]n appropriate circumstances, the right must bow to accommodate other legitimate interests in the criminal process. Washington v. Walsh, 08 Civ (DAB), 2010 WL , at *6 (S.D.N.Y. Feb. 5, 2010) (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973)). In such appropriate circumstances, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness safety, or interrogation that is repetitive or only marginally relevant. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); accord Cotto v. Fischer, 09 Civ (SAS) (MHD), 2012 WL , at *34 (S.D.N.Y. Aug. 23, 2012); see also Smith v. State of Illinois, 390 U.S. 129, at (1968) (White, J. and Marshall, J. concurring) ( In Alford v. United States, 282 U.S. 687, 694 (1931), the Court recognized that questions which tend merely to harass, annoy, or humiliate a witness may go beyond the bounds of proper cross-examination. I would place in the same category those inquiries which tend to endanger the personal safety of the witness. ); Alvarado v. Surge, 05 Civ (AKH), 2006 WL , at *2 (S.D.N.Y. June 30, 2006) ( Testifying by giving an identifying number rather than a name does not necessarily curtail any trial rights. ). Accordingly, the Second Circuit has long approved limitations on crossexamination designed to protect witness safety. See United States v. Watson, 599 F.2d 1149, 3

8 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 8 of (2d Cir. 1979) (upholding limitation of cross-examination to permit witness enrolled in Witness Protection Program to maintain concealed identity); United States v. Cavallaro, 553 F.2d 300, 304 (2d Cir. 1977) (upholding preclusion of questions concerning kidnapping victim s address where prosecutor represented his belief that there had been difficulties following the kidnapping and that the witness was in great fear ); United States v. Marti, 421 F.2d 1263, 1266 (2d Cir. 1970) (affirming restriction of cross-examination on the address of a co-defendant, who testified as a prosecution witness). Such limitations can be appropriate when the government voices a legitimate concern for a witness safety. Cavallaro, 553 F.2d at C. Argument While there is publicly available information indicating that the CW has cooperated with the Government in the past, see Cronan Decl. 7-9, the Government submits that the protective measures sought herein in connection with the CW s upcoming testimony are warranted for a number of reasons. First, the Government is not aware of any information in the public record suggesting that the CW continues to cooperate with the Government. See Cronan Decl. 16. Indeed, publicly available information accurately reflects that the CW has completed his sentence, including his post-incarceration period of supervision. See Cronan Decl. Exh. B. Moreover, the Government is not aware of any publicly available information that the CW has provided information relating to the defendant. See Cronan Decl. 16. Nor has the Government publicly identified the CW by name as a potential witness at the defendant s trial. Id. Second, were the CW s identity to be publicly revealed, the CW and his family would be likely to face substantial harassment and embarrassment. The CW s arrest and prosecution attracted extensive media attention, which resulted in members of the press regularly attempting 4

9 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 9 of 22 to contact the CW s family, not only by phone but also by repeatedly showing up at the CW s family s residence. See Cronan Decl. 14. The CW s situation continues to attract attention from his community s local press, even more than a decade after his arrest and conviction. Id. This trial similarly is likely to attract considerable media attention. Indeed, thus far, the international news media has covered myriad facets of the pretrial process, including Abu Ghayth s arrest 2 and arraignment, 3 and pretrial motion practice, 4 among other subjects. 5 The CW is expected to be one of very few non-law enforcement or non-military witnesses at trial, and the only lay witness who had a meaningful in-person interaction with the defendant at the time of the charged criminal activity. It therefore can be expected that the CW s testimony which will concern his interactions in Afghanistan with not just the defendant but also with Usama Bin Laden just three or four months before September 11, 2001 will attract media attention, especially in his local community. For these reasons, were the CW to testify under his true name, both he and his family are likely to draw attention from members of the press again, which would result in harassment and embarrassment within their community. Indeed, this harassment risk is even greater today due to 2 See, e.g., Ken Dilanian & Richard A. Serrano, Bin Laden s Son-in-Law Arrested; Alleged al-qaida Spokesman Is Brought to U.S. to Face Terror-Related Charges, Chicago Tribune, Mar. 8, See, e.g., Marc Santora & William K. Rashbaum, Bin Laden Son-in-Law Pleads Not Guilty in N.Y.; Ex-Spokesman Faces Conspiracy to Kill Charges, N.Y. Times, Mar. 9, 2013; Richard A. Serrano, Bin Laden Relative Held on Terrorism Charges, Los Angeles Times, Mar. 8, 2013; Matt Williams, Osama Bin Laden s Son-in-Law Pleads Not Guilty in New York Court, Guardian, Mar. 8, See, e.g., Benjamin Weiser, Judge Says Statements by Bin Laden s Son-in-Law Can Be Used in Terrorism Case, N.Y. Times, Nov. 26, 2013; Daniel Beekman, Comfy Ride for Prince of Terror, N.Y. Daily News, Sept. 18, 2013; Bruce Golding, Terror Justice Delayed ; Judge Rips Fed Cut$, N.Y. Post, Apr. 9, See, e.g., Benjamin Weiser, Son-in-Law of Bin Laden Isn t Allowed More Calls, N.Y. Times, Apr. 20, 2013; John Riley, Bin Laden Son-In-Law s Trial Might Be Delayed Until 2014, Newsday, Apr. 9,

10 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 10 of 22 the increased use of the Internet as an effective tool to identify, locate, and communicate with people, despite their best efforts to keep their personal information private. This Court therefore should exercise its wide discretion to restrict cross-examination to safeguard against the danger of such harassment and embarrassment. See, e.g., Van Arsdall, 475 U.S. at 679 ( trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness safety, or interrogation that is repetitive or only marginally relevant ); Alford, 282 U.S. at 694 ( There is a duty to protect [a witness] from questions which go beyond the [bounds] of proper cross-examination merely to harass, annoy or humiliate him. ). The CW and his family have worked hard to put the CW s prior criminal activity behind them and to move on with their lives, and they have been very successful in doing so. See Cronan Decl. 12. Exposure of the CW s true name will likely result in his family being forced to revisit his past in a very public and potentially embarrassing setting, not only in the local, national, and international media but also within their local community, after he has completed serving his punishment for his criminal conduct. And to be sure, while the CW is primarily concerned with the embarrassment and harassment that he and his family would face, clearly there are legitimate safety concerns attendant to the CW testifying at this trial under his true name. Indeed, on December 23, 2013, this Court granted the Government s motion for the empanelment of an anonymous jury, in light of the reasonable fears that jurors are likely to face in connection with the trial of a prominent and influential member of al Qaeda who worked alongside Bin Laden and other al Qaeda leaders and who made chilling threats against America in the weeks and months following September 11, The very same reasons that give rise to the likelihood that jurors may be fearful when 6

11 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 11 of 22 deciding the defendant s guilt also operate to cause a reasonable fear on the part of a lay witness (and his family) who is testifying against that defendant. It is beyond cavil that killing Americans stands at the forefront of al Qaeda s core goals, with the terrorist group s members often pledging an oath of allegiance to al Qaeda s leaders and their objectives. Abu Ghayth s core role in al Qaeda was to motivate supporters to engage in acts of violence and murder immediately after September 11, Indeed, Abu Ghayth was one of the men to whom Bin Laden turned on the evening of September 11, 2001 to address the world and to call on al Qaeda s supporters to join in the trench of his jihad against perceived infidels and disbelievers. In statements that soon followed, the defendant made horrifying threats against Americans and urged al Qaeda supporters to engage in acts of violence and murder, declaring that the Storm of Airplanes would continue; advising Muslims in the United States and Great Britain to avoid airplanes and tall buildings; recruiting terrorist operatives by explaining that the magnitude of their cause extended beyond Bin Laden; announcing that they have terrorized the infidels at the orders of God; glorifying al Qaeda s historical attacks against America within the United States and abroad; praising the actions of the September 11 th hijackers; announcing that al Qaeda s military and security system are now conducting surveillance, investigation, and monitoring [of] new American targets ; threatening that we will launch attacks against America at a time, place, and manner of al Qaeda s choosing; and assuring that al Qaeda had the capability to follow through on its threats against America. And as the defendant himself put it, We are men of action and not men of words, which cannot be 6 The defendant s alleged criminal conduct has been summarized for the Court in prior filings, so the Government does not do so again here. See, e.g., Government s Memorandum of Law in Opposition to the Defendant s Motions to Dismiss, Suppress, and for a Bill of Particulars, filed Aug. 8, 2013, at pp. 2-3; Government s Memorandum of Law in Support of its Motion for a Deposition Pursuant to Rule 15 of the Federal Rules of Criminal Procedure, filed Dec. 20, 2013, at pp

12 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 12 of 22 dismissed as an idle threat given al Qaeda s successful execution of a number of terrorist attacks targeting Americans, resulting in the deaths of several thousands of innocent American civilians. Al Qaeda s devoted and fanatical supporters men who have proven their willingness to give their lives to achieve al Qaeda s goals of killing Americans constituted the very audience that the defendant was trying to inspire to embark on acts of violence and murder. For all these reasons, there can be no serious questions that there are legitimate concerns associated with testifying against someone who worked directly with the leadership of al Qaeda at the time of the terrorist group s most devastating attacks against America; these concerns, which extend to both the CW and his family, are amplified if the CW s name is publicly revealed. Weighed against these legitimate concerns, the Government seeks relatively minimal protective measures that will impose only a narrow limitation on questioning that could reveal the CW s true identity and town of residence, while simultaneously safeguarding the defendant s rights under the Confrontation Clause of the Sixth Amendment. See Cavallaro, 553 F.2d at 304 ( [W]here the government voices a legitimate concern for a witness safety, the trial court must balance the potential danger to the witness against the need of the defense for the information. ). This is because the Government has advised the defense of the CW s true and town of residence, and proposes to provide other 3500 and Giglio material pursuant to a protective order, which will allow the defense to fully investigate the CW prior to trial in order to prepare for crossexamination. Cf. Marti, 421 F.2d at 1266 (prosecution s offer to provide witness-related information to defense counsel privately satisfies confrontation rights and does not prejudice cross-examination). The Eastern District of Virginia, in issuing a protective order that permitted eleven victims of fraudulent artificial insemination to testify by pseudonym to protect their 8

13 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 13 of 22 children, explained that testifying by pseudonym can have a minimal impact on a defendant s Sixth Amendment rights: The use of pseudonyms is a narrowly tailored measure because it shields the identity of the witnesses from the press and the public only. Significantly, the Defendant and his counsel will know the true identity of the [witnesses]. Use of the pseudonyms will not interfere with the defendant s preparation for trial, with his ability to cross-examine witnesses at trial, or with the scope of the examination. In other words, the Sixth Amendment right to confront all witnesses will be preserved. United States v. Jacobson, 785 F. Supp. 563, 569 (E.D.Va. 1992). In fact, by providing impeachment information for the CW upon entry of a protective order, and therefore before the defense would receive this information in the normal course, the defense arguably will have greater opportunity to thoroughly investigate and cross-examine the CW than the defense otherwise would. Moreover, in this case, nothing about the CW s true name or his town of residence affects the credibility or the reliability of his anticipated testimony regarding his time in Afghanistan in mid See United States v. Hernandez, No. S1 12 Cr. 809 (PKC), 2013 WL , *3 (S.D.N.Y. July 29, 2013) (allowing undercover federal agent to testify by pseudonym based on witness safety concerns, where the defense was given the agent s true name under a protective order and nothing about the Agent s real name [went] to the Agent s credibility or knowledge regarding the subject of the Agent s testimony ). Nor would testimony about the CW s name or town of residence be relevant in any manner to the defendant s guilt or innocence. Indeed, the CW turned over his passport to al Qaeda upon arriving in Afghanistan in mid-2001 and then exclusively used an alias throughout his time there, including during his encounters with the defendant, Bin Laden, and others associated with al Qaeda. Nor will the defendant suffer any prejudice at trial arising from jurors speculating about the need for the witness s anonymity, 9

14 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 14 of 22 because the jury will not be advised of the CW s use of a pseudonym. Thus, the open-court anonymity sought by the Government will neither deprive the defendant of the ability to confront the CW s testimony nor would it deprive the jurors of their ability to fully evaluate the CW s demeanor. Judicial decisions both within and outside the Second Circuit support the imposition of protective procedures similar to those sought by the Government here. For instance, in Marti, where the Second Circuit affirmed a restriction of cross-examination of a cooperating codefendant s address, the court explained that a reason to prevent revealing a witness s address in open court may be that the answer may subject the witness to reprisals or that the question is being used to humiliate or annoy the witness. Marti, 421 F.2d at 1266 (citing Smith, 390 U.S. at 134; Alford, 282 U.S. at 694); see Jacobson, 785 F. Supp. at 569 (permitting victim-witnesses to testifying by pseudonym, finding that such procedure would shield[] the identity of the witnesses from the press and public, would not interfere with the defendant s ability to prepare for trial and would preserve the defendant s Sixth Amendment right to confrontation). A number of courts also have permitted witnesses to testify by pseudonym where sufficient safety concerns were present. In Watson, for example, the Second Circuit affirmed the district court s restriction of cross-examination of a Government witness, who was in the Witness Protection Program and received death threats, about some of the witness s current activities, including his employment and family matters. See Watson, 599 F.2d at The Second Circuit held that, [u]nder all the circumstances, given the seriousness of the threat and the extensiveness of the cross-examination that the court did permit,... the judge acted within his discretion in limiting the scope of cross-examination so as to permit [the witness] to maintain his concealed identity. Id. (citations omitted). Much like the procedures proposed here, the 10

15 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 15 of 22 defense attorney in Watson was able to explore the witness s criminal history in extensive detail, as well as other avenues of cross-examination that might impeach the witness s credibility. Id. 7 Courts outside of this Circuit have repeatedly permitted witnesses to testify without disclosing their true identities where the circumstances warranted. Endorsing protections that closely mirrored those requested here, the District of Columbia Circuit in Celis a prosecution of members of the Fuerzas Armadas Revolucionaras de Colombia ( FARC ) affirmed the use of anonymous witness testimony where the true identity of the witnesses in question was released to defense counsel under a protective order for investigative purposes. See United States v. Celis, 608 F.3d 818 (D.C. Cir. 2010). The protective order in Celis allowed the witnesses from Colombia to testify under pseudonyms, required the government to disclose the witnesses true identities to defense counsel, permitted each defense counsel to share the protected witnesses true identi[t]ies with the represented defendant and one member of the defense team located in the United States, and prevented the true identities of the witnesses 7 In analogous situations involving testimony of undercover law enforcement officers, courts in this Circuit have permitted, at the Government s request, the officers to testify under their shield numbers. See United States v. Grant, 04 Cr. 207 (BSJ) (S.D.N.Y.); United States v. Miranda, S10 05 Cr. 189 (GBD) (S.D.N.Y.). Generally, such anonymous testimony by undercover officers has been allowed when the prosecution has provided justifications includ[ing]: the undercover officers were still engaged in undercover work...; they had been threatened during their careers and knew of threats to fellow officers; they had lost subjects at large; and they both took precautions on a regular basis to keep their true identities a secret. Cotto, 2012 WL , at *35 (citing Washington, 2010 WL , at *7); see Washington, 2010 WL , at **7-9 (denying habeas relief where the trial judge permitted the officers to testify anonymously); see also Martinez v. Brown, 08 Civ (RMB) (GWG), 2009 WL , at **5-7 (S.D.N.Y. June 8, 2009) (denying habeas relief where prosecution offered a reasonable basis for determining that the officer's safety would be at risk if he testified under his own name and the defendant lacked a persuasive reason for needing to know the officer s name); Nelson v. Crowley, No. 07 Civ. 849 (RJS), 2009 WL , **4-6 (S.D.N.Y. Feb. 23, 2009) (denying habeas relief where undercover officer was permitted to testify anonymously after the prosecution asserted that the witness s safety was at stake, and the defendant failed to articulate a reason why the Undercover s name was relevant to developing evidence of specific bias regarding the events leading to Petitioner's arrest and prosecution ). 11

16 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 16 of 22 from being shared with anyone located in Colombia without the district court s prior permission. Id. at 830. Emphasizing safety concerns for these witnesses, the D.C. Circuit held that there can be little question that a protective order for certain Colombian government witnesses was appropriate in light of the Government s submissions in its sealed in limine motion for a protective order. Id. at 832. The D.C. Circuit reasoned that [t]he protective order and its management by the district court reflect an appropriate balancing of interests in the relevant case-specific context in view of the factors described [by the Supreme Court]. Id. at 833. The Fifth Circuit and Northern District of Illinois have permitted witnesses to testify anonymously at terrorism trials involving the provision of support to Hamas. In United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011), as revised (Dec. 27, 2011), cert. denied, 133 S. Ct. 525, 184 L. Ed. 2d 338 (2012), two prosecution witnesses, who were connected to the Israeli Security Agency ( ISA ) and the Israeli military, testified under pseudonyms in order to protect their personal safety as well as to safeguard broader national security concerns. The Fifth Circuit approved, explaining that the defendants interest in obtaining the names of the witnesses is outweighed by the Government s need to keep the information secret. Id. at As in El- Mezain, the procedures proposed here will provide that the defense with sufficient information regarding potential bias and other valid grounds for cross-examination, thus ensuring that the defense will be well-armed with information upon which to confront and cross-examine the CW. Id. at 492 (citing Delaware v. Fensterer, 474 U.S. 15, 20 (1985) ( [T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. (emphasis in original)). Similarly, in Abu Marzook, the Northern District of Illinois permitted ISA agents to 12

17 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 17 of 22 not reveal their true names and testify using pseudonyms, even though the defendant did not know the true identities of these witnesses. See United States v. Abu Marzook, 412 F. Supp. 2d 913, (N.D. Ill. 2006). Similar to the procedures authorized in Abu Marzook under the Sixth Amendment, the Government s proposal here will enable to defendant to physically face the CW and effectively cross-examine the CW based on his testimony and any other proper basis. Id. Here, the Government proposes measures that arguably would allow the defense to conduct an even more fulsome investigation and cross-examination of the CW than in El-Mezain and Abu Marzook, where the witnesses were completely anonymous to everyone but members of the prosecution team. The Ninth Circuit s analysis in Clark v. Ricketts, 958 F.2d 851 (9th Cir. 1992) is also instructive. There, the Ninth Circuit affirmed the denial of habeas relief, sought on Sixth Amendment right to confrontation grounds, where a Drug Enforcement Administration informant was allowed to testify as a Joe Doe witness. The petitioner in Clark was provided with the witness s true name and felony record, which provided [the petitioner] with the avenues of in-court examination and out-of-court investigation which the accused was denied in Smith v. Illinois. Clark, 958 F.2d at 855. The Ninth Circuit held that the trial court did not err in forbidding cross-examination of the witness s true name after it determined, following an in camera proceeding at which the witness revealed that he had received threats and that he would be providing information in pending cases, that his life would be endangered by publicly revealing his true name and address. Id. Affirming this procedure, the Ninth Circuit determined that there is no absolute right of an accused to have a jury hear a witness s true name and address. Id. As the Government proposes to do here, the prosecution in Clark provided the defense with the witness s actual name and criminal record in advance of trial, which allowed the 13

18 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 18 of 22 defense to conduct an out-of-court investigation of the witness and pursue appropriate avenues of cross-examination. Id. at 855. Moreover, the Government s proposal not to reveal to the jury that the CW is testifying under a pseudonym carries less of a risk of prejudice to the defendant than in Clark, where the witness apparently testified as John Doe. Finally, in Ramos-Cruz, the Fourth Circuit recently affirmed the district court s decision to allow two government witnesses in an international narcotics trial to testify under pseudonyms and without revealing their names, home and work addresses, or dates and places of birth. United States v. Ramos-Cruz, 667 F.3d 487, 500 (4th Cir. 2012). Noting that the Government must make a showing of an actual threat that is not a result of conjecture, the Fourth Circuit held that the showing of such danger overshadows Confrontation Clause concerns when the substance of the testimony of the two witnesses in question was provided to the defense prior to trial and the disputed witnesses testimony was not the only evidence offered at trial. Id. at 500 (internal quotation marks and citations omitted); see also United States v. Palermo, 410 F.2d 468, 472 (7th Cir. 1969) (holding that if the prosecution makes a showing of an actual threat, the district court has discretion to review relevant information and determine whether disclosure of a witness s identifying information is necessary to allow effective crossexamination). As in El-Mezain and Abu Marzook, the Fourth Circuit reached its conclusion where unlike the Government s proposed course here the witnesses true names were not provided to defense counsel for investigative purposes. The Supreme Court s decisions in Smith and Alford where the Court invalidated witness protection measures under materially different circumstances are not to the contrary. See Smith, 390 U.S. at ; Alford, 282 U.S. at Smith and Alford safeguard two central interests : (1) the defense s need for information which may be helpful in investigating the 14

19 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 19 of 22 witness out of court or in further cross-examination ; and (2) situations where knowledge of the witness s address by the jury might be important to its deliberations as to the witness credibility or his knowledgeability. Marti, 421 F.2d 1263, 1266 (2d Cir. 1970). Neither of those concerns is implicated here. First, through the attached sealed declaration, the Government has provided defense counsel with the CW s name and town of residence a critical distinction from Smith where although defense counsel knew the witness from previous experience, there was no indication that counsel knew the witness true name or address. Id. For reasons explained supra at pages 4 to 9, questioning of the CW in open court as to his true name and town of residence would be completely immaterial to this case, would not allow for a more meaningful cross-examination given the Government s disclosures to the defense, and could endanger the lives of the CW and his family and subject them to harassment and humiliation. See Smith, 309 U.S. at (White, J. and Marshall, J. concurring) ( questions which tend merely to harass, annoy, or humiliate a witness may go beyond the bounds of proper crossexamination, as well as those inquiries which tend to endanger the person safety of the witness ); Alford, 282 U.S. at 694 ( There is a duty to protect [a witness] from questions which go beyond the [bounds] of proper cross-examination merely to harass, annoy or humiliate him. ). Second, this situation differs from Alford, where cross-examination of the witness as to where he lived may have established that his testimony was affected by fear or favor growing out of his detention. Alford, 282 U.S. at 693. The CW s only discussion of the United States will come as background leading to his travel to Afghanistan and in the context of his conviction and subsequent release from custody. Unlike in Alford, the defendant has completed his sentence and there is no reason to suspect that testimony regarding the CW s address will reveal that his testimony is biased or coerced. See Marti, 421 F.2d at 1266 (in Alford, the possible 15

20 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 20 of 22 revelation in open court that the witness was residing in jail would have been pertinent to the evaluation of his credibility and to the question of whether the witness had been promised anything for his testimony ). In any event, the Government has disclosed the CW s town of residence to the defense, and of course will also produce impeachment information relating to the CW s prior conviction and criminal conduct, his cooperation with the Government, and any benefits he received from that cooperation. See, e.g., Siegfriedt v. Fair, 982 F.2d 14, 17 (1st Cir. 1992) (declining to interpret Alford and Smith as imposing a bright-line rule that precludes a witness testifying by pseudonym where the circumstances warrant); United States v. Alston, 460 F.2d 48, 51 (5th Cir. 1972) ( [I]t appears to us that the purpose of Alford/Smith was to safeguard the opportunity for a meaningful and open cross-examination, not to require that a witness always divulge his or her home address. ). Finally, in addition to the measures outlined above, and to further protect the CW and his family, the Government respectfully requests that the Court direct any courtroom sketch artists present for the CW s testimony not to sketch the CW s image, and to permit the CW to enter and exit the courthouse and courtroom without using the public entrances. See, e.g., Abu Marzook, 412 F. Supp. 2d at 928 (permitting ISA officers to use a private entrance to the courthouse and the courtroom); United States v. Kaufman, Nos. CRIM.A , CRIM.A , 2005 WL , **2-5 (D. Kan. Oct. 17, 2005) (finding that sketch artists lack a First Amendment right to attend and sketch proceedings in a criminal trial, and holding that sketch artists are prohibited from sketching jurors or, pursuant to 18 U.S.C. 3771, any of the victims); United States v. George, Nos (RCL), (RCL), 1992 WL , at **2-3 (D.D.C. July 29, 1992) (on Government s motion to protect trial witnesses who were undercover officers of the Central Intelligence Agency ( CIA ), (1) permitting certain CIA witnesses to 16

21 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 21 of 22 testify behind a portable screen such that only the court, counsel, defendant, and jury can see the witness; (2) preventing courtroom sketch artists from sketching other CIA officers who are not testifying from behind a screen but whose facial features need to be protected; (3) not disclosing the witnesses names publicly, but rather disclosing only to the defendant, court, government s counsel, and jury; and (4) permitting the witnesses to enter and exit the courthouse and courtroom without using the public entrances); Jacobson, 785 F. Supp. at (in prosecution of doctor involving allegations of fraudulent insemination, permitting parent witnesses to testify by assigned pseudonyms and ordering that no sketch artist will be allowed in the courtroom during the testimony of the eleven parent witnesses to further protect the identity of the parents and their children from disclosure to the public and the press). III. CONCLUSION For all of the foregoing reasons, the Government s motion should be granted. Dated: New York, New York January 31, 2014 Respectfully submitted, PREET BHARARA United States Attorney By: /s/ John P. Cronan JOHN P. CRONAN NICHOLAS LEWIN MICHAEL FERRARA Assistant United States Attorneys / /

22 Case 1:98-cr LAK Document 1457 Filed 01/31/14 Page 22 of 22 AFFIRMATION OF SERVICE JOHN P. CRONAN, pursuant to 28 U.S.C. 1746, hereby declares under the penalty of perjury: I am an Assistant United States Attorney in the Office of the United States Attorney for the Southern District of New York. On January 31, 2014, I caused copies of the Government s Memorandum of Law in Support of Its Motion for a Cooperating Witness to Testify at Trial Under a Pseudonym and for Other Protective Relief, with a proposed Protective Order, to be delivered by ECF and electronic mail to the following counsel for defendant Sulaiman Abu Ghayth: Stanley Cohen, Esq. stanleycohenlaw@verizon.net Geoffrey Stewart, Esq. gstewart.defender@gmail.com Ashraf Nubani, Esq. awn@awnpointlaw.com Zoe Dolan, Esq. zdolan@gmail.com I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Dated: New York, New York January 31, 2014 /s/ John P. Cronan Assistant United States Attorney

23 Case 1:98-cr LAK Document Filed 01/31/14 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA : - v. - : S14 98 Cr (LAK) SULAIMAN ABU GHAYTH, : a/k/a Salman Abu Ghayth, : Defendant. : x PROTECTIVE ORDER PERTAINING TO UNCLASSIFIED INFORMATION UPON application of the Government, and with consent of the defense: WHEREAS, the Government expects to call at trial a witness (the Witness ) who has expressed concerns regarding his safety and the safety of his family, as well as potential harassment and embarrassment to him and his family were his testimony to be publicly revealed; WHEREAS, the Government recognizes its obligation to put the defense in a position to effectively investigate and cross-examine the Witness; and WHEREAS, the Government provided the defense with the true name of the Witness and the Witness s town of residence; IT IS HEREBY ORDERED, pursuant to Federal Rule of Criminal Procedure 16(d), that (1) as soon as practicable after entry of this order, the Government shall provide to defense counsel any material pursuant to Title 18, United States Code, Section 3500 and Giglio v. United States, 405 U.S. 150 (1972), that relate to the Witness (collectively, with the Witness s true name and town of residence, the Witness s Information ); and (2) the defense counsel shall not further disseminate the Witness s Information (including the Witness s true name and town of

24 Case 1:98-cr LAK Document Filed 01/31/14 Page 2 of 2 residence) to anyone other than members of the defense team, which includes the defendant, cocounsel, paralegals, investigators, translators, litigation support personnel, secretarial staff, and defense experts. Each of the individuals to whom disclosure of the Witness s Information is made shall be provided a copy of this Protective Order by counsel of record and will be advised by counsel of record that he or she shall not further disseminate the Witness s Information except by the express direction of counsel of record. IT IS FURTHER ORDERED that, at trial, the Witness shall testify using a pseudonym and shall not be required to reveal his true name or address, other than that he resides in the United States. FINALLY, IT IS ORDERED that nothing in this Order shall preclude the Government from seeking a further protective order pursuant to Federal Rule of Criminal Procedure 16(d) if the Government determines such measures are necessary. Dated: New York, New York February, 2014 SO ORDERED: THE HONORABLE LEWIS A. KAPLAN United States District Judge Southern District of New York 2