United States v. Hafiz Muhammad Sher Ali Khan
2015 U.S. App. LEXIS 12724
11th Cir.2015Background
- Hafiz Muhammad Sher Ali Khan, a U.S. citizen and longtime operator of a Pakistani madrassa, was indicted (2011) and convicted on counts of conspiring to provide and providing material support to terrorists and to a foreign terrorist organization (Pakistani Taliban). He was sentenced to 25 years.
- Government proof relied heavily on ~136 hours of intercepted FISA calls and recorded conversations translated from Pashto/Urdu, recordings made by an informant, and bank records showing remittances from Khan in Miami to Pakistan.
- Defense contested: (1) translations that included bracketed insertions clarifying unstated referents, (2) admission and scope of testimony by FBI Agent Michael Ferlazzo (alleged expert/summary testimony and limits on cross-examination), and (3) denial of a continuance or mistrial after live video depositions from Pakistan failed when the feed was cut.
- District Court admitted the transcripts, required the Government’s translator to explain bracketed words at trial, allowed Ferlazzo to testify (largely as a lay witness based on his investigation), and fashioned Rule 15 video-deposition procedures in Pakistan but conditioned them on Pakistani awareness/approval; the live feed later failed and the court denied further continuances or a mistrial.
- On appeal, the Eleventh Circuit reviewed evidentiary rulings for abuse of discretion and constitutional confrontation claims under established standards and affirmed Khan’s convictions.
Issues
| Issue | Khan's Argument | Government's Argument | Held |
|---|---|---|---|
| Admissibility of translator’s bracketed insertions in FISA-call transcripts | Bracketed words invade the jury’s province by stating what Khan meant rather than what he said; translations must be literal | Translator may supply clarifying words when grounded in linguistic expertise and context; jury decides accuracy | Court affirmed: translator’s contextual clarifications admissible; district court acted within discretion and gave limiting instruction to jury |
| Admission/scope of Agent Ferlazzo’s testimony (expert, summary, and definitions) | Ferlazzo testified as an undisclosed expert and gave improper summary/opinion testimony and definitions beyond lay scope | Ferlazzo testified as a lay witness based on personal investigation and transcript review; any overlap was harmless where experts for both sides covered same topics | Court held no reversible error: either testimony was lay, or any error was harmless given overlapping expert testimony; no abuse of discretion re: summary-witness claim |
| Limits on cross-examination of Ferlazzo (informant duration, other informants, Pakistani police report) | Court improperly curtailed confrontation by precluding lines of inquiry that would show bias/impeachment and expose Brady material | Questions were irrelevant, barred by CIPA/classification concerns, hearsay, or beyond scope; trial mechanisms (CIPA, in camera review) were followed | Court held limits were within discretion; excluded lines were marginally relevant/repetitive or classified; no Confrontation Clause violation shown |
| Denial of continuance or mistrial after live video-deposition feed from Pakistan failed | Failure deprived Khan of critical exculpatory testimony and due process; court should have continued trial or declared mistrial | Defense failed to obtain required Pakistani approval despite court orders; alternative means (letters rogatory, visas, third-country arrangements) were not timely pursued; continuance would unduly delay trial | Court affirmed denial: abuse-of-discretion standard applied; district court reasonably found defense not diligent and low probability testimony could be secured within reasonable time |
Key Cases Cited
- United States v. Onori, 535 F.2d 938 (5th Cir. 1976) (trial courts may admit transcripts as aids and rely on translators to help jury understand recordings)
- United States v. Jayyousi, 657 F.3d 1085 (11th Cir. 2011) (standard for reviewing admission of expert testimony)
- United States v. Rosado-Perez, 605 F.3d 48 (1st Cir. 2010) (caution against premature overview testimony by investigators)
- United States v. Hawkins, 905 F.2d 1489 (11th Cir. 1990) (harmless-error analysis for nonconstitutional evidentiary errors)
- Delaware v. Van Arsdall, 475 U.S. 673 (1986) (Confrontation Clause: limits on cross-examination reviewed for whether jury would have had a significantly different impression)
- Ungar v. Sarafite, 376 U.S. 575 (1964) (denial of continuance review and due process limits)
- Morris v. Slappy, 461 U.S. 1 (1983) (trial judges have wide latitude to manage trials and grant continuances)
- United States v. Wright, 63 F.3d 1067 (11th Cir. 1995) (factors for evaluating denial of continuance to obtain testimony)