990 F. Supp. 2d 427
S.D.N.Y.2014Background
- Cooperating witness (CW), previously convicted of a terrorism offense and sentenced, says he encountered Abu Ghayth at an al Qaeda guest house in Kandahar in May 2001 and later recognized him from post‑9/11 media.
- CW gave consistent interviews to the FBI in December 2003, March 2012, May 3, 2012, and February 23, 2013.
- On May 3, 2012, the CW viewed an eight‑photo array and identified two photos (one of which he believed possibly depicted Abu Ghayth).
- On February 23, 2013, the CW viewed a six‑photo contemporaneous array (photo 1 = Abu Ghayth) and indicated that photo 1 “looks similar to” Abu Ghayth, noting aging and eye features aided identification.
- Abu Ghayth moved to suppress the out‑of‑court identifications and preclude in‑court identification or, alternatively, for a Wade evidentiary hearing, arguing the procedures were unduly suggestive and tainted by prior exposure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of May 3, 2012 out‑of‑court photo ID | Government: array was a general eight‑photo identification request (not aimed solely at Abu Ghayth); no suggestiveness | Abu Ghayth: array effectively single‑photo/suggestive; FBI did not use blind administration; image likely previously seen by CW | Denied suppression — array was not unduly suggestive; procedure neutral and admissible |
| Admissibility of Feb 23, 2013 out‑of‑court photo ID | Government: contemporaneous photo array was non‑suggestive; CW instructed neutrally and differences due to aging explain variation | Abu Ghayth: fillers were dissimilar; unique features (e.g., "zebibah") and prior May identification tainted later ID (mugshot exposure effect) | Denied suppression — array not unduly suggestive; prior ID did not taint later ID given context and differences |
| Request for Wade evidentiary hearing | Government: no disputed material facts that would warrant a hearing | Abu Ghayth: factual disputes about neutrality and reliability of procedures justify a hearing | Denied — no contested material facts; reliability issues may be explored at trial before jury |
| Potential exclusion of in‑court ID as fruit of suggestive procedures | Government: identifications were reliable and non‑suggestive | Abu Ghayth: out‑of‑court suggestiveness requires independent‑source showing before permitting in‑court ID | Denied suppression of identifications; court found no undue suggestiveness and no need to test independent‑source criteria |
Key Cases Cited
- Jarrett v. Headley, 802 F.2d 34 (2d Cir. 1986) (explains suggestiveness analysis and evaluates photo array characteristics)
- Raheem v. Kelly, 257 F.3d 122 (2d Cir. 2001) (describes two‑part test and factors for evaluating suggestive identifications)
- United States v. Thai, 29 F.3d 785 (2d Cir. 1994) (collects factors relevant to photographic array review)
- Manson v. Brathwaite, 432 U.S. 98 (1977) (sets reliability factors for admissibility of identification evidence)
- United States v. Wade, 388 U.S. 218 (1967) (establishes right to evidentiary hearing on lineup procedures)