United States v. Al Farekh, 956 F.3d 99

Muhanad Al‑Farekh, a U.S. citizen, traveled to Pakistan in 2007, joined al‑Qaeda, and rose to a leadership role implicated in plots including a planned attack on a U.S. military base.
Arrested in Pakistan in 2015, flown to the U.S., and tried in the Eastern District of New York on counts including use of explosives, conspiracy to murder U.S. nationals, WMD‑related conspiracies, bombing a U.S. government facility, and material support to terrorists.
Government presented (a) classified materials submitted ex parte under CIPA §4, (b) a Rule 15 deposition of a foreign witness (“Murad”) who identified a photograph of Al‑Farekh after being shown ~300 photos overseas, and (c) fingerprint evidence: 18 latent prints from an undetonated VBIED that FBI examiner Kendra Sibley matched to Al‑Farekh.
Jury convicted Al‑Farekh on all counts; district court sentenced him principally to 45 years’ imprisonment.
On appeal, Al‑Farekh contested numerous rulings; this opinion addresses three issues: (1) ex parte CIPA §4 proceedings despite defense counsel having clearance, (2) admissibility of Murad’s out‑of‑court photo ID as unduly suggestive, and (3) limitation on cross‑examination of the fingerprint examiner to exclude the unrelated Brandon Mayfield misidentification.

Issue	Plaintiff's Argument	Defendant's Argument	Held
CIPA §4 ex parte review	Gov’t: §4 and Rule 16(d)(1) authorize ex parte, in camera review; national‑security info can be withheld.	Al‑Farekh: counsel had security clearance; court abused discretion by denying counsel access to §4 filings.	Affirmed — no bright‑line rule; §4 permits ex parte review; court appropriately reviewed materials and met with defense to hear theory; need‑to‑know controls access.
Admissibility of out‑of‑court photo ID	Gov’t: ID reliable and not unduly suggestive—Murad saw ~300 photos, aided sketch, then identified photo.	Al‑Farekh: overseas custodial interrogations and photo displays were suggestive and tainted the ID.	Affirmed — procedures not unduly suggestive under totality; any inconsistencies affect weight, not admissibility.
Cross‑examination re Brandon Mayfield error	Gov’t: Mayfield case is unrelated and would confuse/prejudice jury; Rule 403 exclusion proper.	Al‑Farekh: excluding Mayfield reference denied effective confrontation and due process, undermining fingerprint reliability challenge.	Affirmed — exclusion not an abuse; Mayfield lacked direct relevance (different examiners, separate case); defendant could probe subjectivity of fingerprint evidence otherwise.

United States v. Abu‑Jihaad, 630 F.3d 102 (2d Cir. 2010) (recognizes district courts’ authority to conduct ex parte, in camera CIPA §4 proceedings)
United States v. Aref, 533 F.3d 72 (2d Cir. 2008) (discusses CIPA procedures and in camera review)
United States v. Stewart, 590 F.3d 93 (2d Cir. 2009) (upholds in camera handling of classified submissions)
United States v. Maldonado‑Rivera, 922 F.2d 934 (2d Cir. 1990) (framework for assessing unduly suggestive identifications)
Manson v. Brathwaite, 432 U.S. 98 (1977) (reliability test for eyewitness identification admissibility)
Neil v. Biggers, 409 U.S. 188 (1972) (factors to determine independent reliability of identifications)
Delaware v. Van Arsdall, 475 U.S. 673 (1986) (Confrontation Clause limits on restricting cross‑examination and harmless‑error analysis)
United States v. Ciak, 102 F.3d 38 (2d Cir. 1996) (example of impermissibly suggestive pretrial identification by police)