UNITED STATES OF AMERICA, Appellee, v. MUHANAD MAHMOUD AL FAREKH, Defendant-Appellant
No. 18-943-cr
United States Court of Appeals for the Second Circuit
April 16, 2020
Before: CABRANES, LOHIER, Circuit Judges, and REISS, Judge.*
AUGUST TERM 2019; ARGUED: DECEMBER 12, 2019
Defendant-Appellant Muhanad Mahmoud Al-Farekh (“Al-Farekh“), a U.S. citizen who traveled to Pakistan to join al-Qaeda and wage violent jihad against the United States, appeals from a judgment of the U.S. District Court for the Eastern District of New York (Brian M. Cogan, Judge) convicting him, following a jury trial, of, among other things, using explosives, conspiring to murder U.S. nationals, conspiring to use a weapon of mass destruction, conspiring to bomb a U.S. government facility, and providing material support to terrorists.
On appeal, Al-Farekh raises a number of challenges. We address three of those challenges here: (1) whether a district court abuses its discretion where it denies a defense counsel with the appropriate security clearance access to motions filed by the Government ex parte pursuant to
We answer all three questions in the negative. Specifically, we hold that, under the circumstances presented in this case, the District
Court did not err in adjudicating the Government‘s CIPA motions ex parte and in camera, admitting the out-of-court photo identification of Al-Farekh, and limiting the cross-examination of the Government‘s fingerprint examiner. Accordingly, the judgment of the District Court is AFFIRMED.
RICHARD M. TUCKER, Assistant United States Attorney (David C. James, Douglas M. Pravda, Saritha Komatireddy, Assistant United States Attorneys; Alicia Cook, Trial Attorney, Counterterrorism Section, United States Department of Justice, Washington, D.C., on the brief), for Richard P. Donoghue, United States Attorney, Eastern District of New York, Brooklyn, NY, for Appellee.
LAWRENCE M. STERN (Robert J. Boyle, on the brief), New York, NY, for Defendant-Appellant.
Defendant-Appellant Muhanad Mahmoud Al-Farekh (“Al-Farekh“) is a U.S. citizen who traveled to Pakistan in 2007 to join al-Qaeda. He became a leader in the terrorist organization and waged violent jihad against the United States and its allies in the Middle East. As a member of al-Qaeda, Al-Farekh conspired to bomb a U.S. military
base in Afghanistan. In 2015, agents of the Federal Bureau of Investigation (“FBI“) arrested him in Pakistan and brought him to the United States to be prosecuted for his crimes.**
Following a jury trial, Al-Farekh was convicted of, among other things, using explosives, conspiring to murder U.S. nationals, conspiring to use a weapon of mass destruction, conspiring to bomb a U.S. government facility, and providing material support to terrorists. The U.S. District Court for the Eastern District of New York (Brian M. Cogan, Judge) sentenced Al-Farekh principally to 45 years’ imprisonment.
Al-Farekh appeals the District Court‘s judgment and raises a number of challenges to his conviction and sentence. We decide here three of those challenges, leaving the others to be addressed in a summary order filed simultaneously herewith: (1) whether a district court abuses its discretion where it denies a defense counsel with the appropriate security clearance access to motions filed by the Government ex parte pursuant to
interrogation that takes place overseas over a period of several weeks and involves the display of hundreds of photographs as part of a foreign country‘s counterterrorism investigation is unduly suggestive, thereby rendering inadmissible an out-of-court photo identification of the defendant; and (3) whether a district court abuses its discretion when it limits the cross-examination of a fingerprint examiner to preclude references to a fingerprint misidentification in a wholly unrelated case that took place 16 years ago—i.e., the Brandon Mayfield incident.2
not err in adjudicating the Government‘s CIPA motions ex parte and in camera, admitting the out-of-court photo identification of Al-Farekh, and limiting the cross-examination of the Government‘s fingerprint examiner.
In the summary order filed today, we decide the other issues raised in Al-Farekh‘s appeal. In sum, the judgment of the District Court is AFFIRMED.
I. BACKGROUND
Al-Farekh is a U.S. citizen who was born in 1985 in Houston, Texas and was raised in the United Arab Emirates. Between 2005 and 2007, Al-Farekh attended the University of Manitoba in Canada. According to the Government, Al-Farekh dropped out of college; traveled to Pakistan; joined al-Qaeda; became a senior leader of the terrorist organization; and was responsible for, among other things, conspiring to perpetrate a violent attack against civilian and military personnel in a U.S. military base in Afghanistan.
On January 8, 2015, Al-Farekh was charged by complaint with conspiring to provide material support to terrorists, in violation of
On May 28, 2015, a grand jury returned an indictment charging Al-Farekh for the same offense, and on January 6, 2016, and January 5, 2017, a grand jury returned superseding indictments. Al-Farekh was tried on the basis of the second superseding indictment for the
following counts: using explosives in violation of
A. Pretrial Proceedings
1. CIPA Materials
The Government‘s case against Al-Farekh included classified material. On June 30, 2016, the Government filed an ex parte classified motion for a protective order pursuant to
2. Deposition of Overseas Witness
The Government‘s case against Al-Farekh also included testimony by a former al-Qaeda collaborator and later Government
witness residing in the Middle East. On November 8, 2016, the Government filed a motion for leave to take the witness‘s testimony by deposition pursuant to
On March 14, 2017, the witness, who testified under the pseudonym “Sufwan Murad,” was deposed. Murad was the driver and bodyguard of al-Qaeda leader Haji Mohammed. Murad testified that he saw a person he knew as Abdullah al-Shami, a senior official of al-Qaeda‘s external operations group, on two separate occasions while driving Mohammed to deliver monthly stipends to the members of al-Shami‘s al-Qaeda brigade. Murad described both encounters in significant detail. Murad also identified a photograph of Al-Farekh as depicting the person he knew as al-Shami.
The able district judge presided over the
B. Trial and Sentencing Proceedings
The trial of Al-Farekh started on September 12, 2017, and lasted approximately two weeks.
1. The Government‘s Case
As a student at the University of Manitoba, Al-Farekh joined the Muslim Students Association, where he met and befriended his future al-Qaeda co-conspirators, Ferid Imam and Maiwand Yar. Al-Farekh, Imam, and Yar discussed and exchanged radical jihadist videos, including some lectures by Anwar al-Awlaki, a now-deceased terrorist who was the leader of al-Qaeda in the Arabian Peninsula. On March 8, 2007, Al-Farekh, Imam, and Yar dropped out of college and flew from Canada to Pakistan, where they headed to the Federally Administered Tribal Areas to join al-Qaeda.
On January 19, 2009, two vehicles carrying vehicle-borne improvised explosive devices (“VBIED“) approached Forward Operating Base Chapman, an important U.S. military base in Afghanistan. The plan was for the first vehicle to detonate its VBIED at the gate so the second vehicle could detonate its significantly larger and more powerful VBIED inside the base and maximize the number of casualties and damage. The first VBIED exploded as planned, injuring several Afghan nationals and a U.S. soldier; the second vehicle was stuck in the crater caused by the first VBIED and did not explode. The driver of the second vehicle was shot and killed after abandoning the vehicle. Latent fingerprints and a hair follicle were recovered from adhesive packing tape in the undetonated VBIED.
According to the Government, 18 fingerprints and the hair follicle were matched to Al-Farekh.
2. Al-Farekh‘s Case
During the Government‘s case-in-chief, Al-Farekh‘s counsel, through rigorous cross-examination, focused on undermining the credibility of the Government‘s witnesses and the reliability of its evidence. During his own case-in-chief, Al-Farekh did not call any witnesses but introduced a stipulation recounting certain inconsistent, out-of-court statements by Murad and another Government witness.
3. The Verdict and Sentence
On September 29, 2017, the jury found Al-Farekh guilty of all nine counts of the
II. DISCUSSION
On appeal, Al-Farekh challenges many of the District Court‘s evidentiary rulings, as well as the reasonableness of his sentence. As stated above, we address here only three of the challenges to his conviction: (1) whether the District Court erred in reviewing and adjudicating the Government‘s CIPA motions ex parte and in camera; (2) whether the District Court erred in admitting Murad‘s out-of-court photo identification of Al-Farekh; and (3) whether the District Court erred in limiting Al-Farekh‘s cross-examination of the Government‘s fingerprint examiner.
For the reasons stated below, we find no error in the District Court‘s rulings and thus affirm the District Court‘s judgment.
A. The Ex Parte Review and Adjudication of CIPA Motions
Al-Farekh argues that the District Court‘s ex parte, in camera review and adjudication of the Government‘s filings made pursuant to
CIPA establishes procedures for the handling of “[c]lassified information” in criminal cases.5 The purpose of CIPA is “to protect[ ] and restrict [ ]the discovery of classified information in a way that does not impair the defendant‘s right to a fair trial.”6
governs the discovery of classified information by criminal defendants. It provides:
The court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove. The court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the court alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the statement of the United States shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.7
We have read this provision to confirm the “district courts’ power under
As relevant here, we have held that
Al-Farekh argues that this Court “has sanctioned ex parte proceedings in CIPA cases” only where defense counsel did not possess the requisite security clearance.10 Al-Farekh asks us to hold that, where a defense counsel has an appropriate security clearance, the District Court may not adjudicate the CIPA motions ex parte and must give defense counsel access to the classified information.
We decline to adopt any such bright-line rule. Nothing in the text of
explained below, Al-Farekh‘s proposed rule cannot be reconciled with CIPA as enacted by Congress and interpreted by our Court.
Starting with the text, the plain language of
information or a statement of the discoverable information.14 And
The legislative history also supports our reading of the statute. The House Report states, for example, that “since the government is seeking to withhold classified information from the defendant, an adversary hearing with defense knowledge would defeat the very purpose of the discovery rules.”16 And our reading is consistent with that of other Circuits that have acknowledged, either explicitly or implicitly, the lawfulness and appropriateness of ex parte proceedings under
settled notion that ex parte, in camera review can be an appropriate procedure for district judges to rely upon when called to handle particularly sensitive documents.18
As a practical matter, because it may well be that the information in a
result in the improper disclosure of information that, by its very nature, may put the national security of the United States at risk.19
Far from abusing its discretion, the District Court properly exercised its authority under CIPA when it reviewed and adjudicated the Government‘s CIPA motions ex parte and in camera. We find no basis in CIPA for vacating Al-Farekh‘s conviction.
B. Murad‘s Out-of-Court Photo Identification of Al-Farekh
Al-Farekh also contends that the District Court denied him his due process rights under the
Murad, a former al-Qaeda collaborator, testified at his
[REDACTED]
[REDACTED]23 [REDACTED] [REDACTED]24, authorities in Murad‘s “home country”25 again interrogated him [REDACTED]. During that interrogation, Murad mentioned al-Shami and provided a detailed description of al-Shami‘s physical appearance. Murad then worked with a sketch artist to create a computer sketch
[REDACTED]27 In his home country, interrogators showed Murad approximately 300 photographs and asked him to identify the person in each picture. [REDACTED]
[REDACTED]28
In his home country, Murad identified one photograph of Al-Farekh after providing his description of al-Shami and helping to compose the sketch. Murad expressed the view that he had “100 percent” confidence in his identification.29 At the time of the identification in his home country, Murad wrote a statement on the back of the photograph depicting Al-Farekh, the person Murad knew as “Abdullah al-Shami, external operations official of Al-Qaeda.”30 At his deposition much later, Murad provided a description of al-Shami‘s appearance that is substantially similar to the one he testified he had provided to the authorities in his home country, and also identified the same photograph of Al-Farekh.
In reviewing Al-Farekh‘s due process challenge to the admission of Murad‘s identification, we must first ask whether the identification procedures employed overseas were “unduly
suggestive of the suspect‘s guilt.”31 In conducting this threshold inquiry, we must “examine the procedures employed in light of the particular facts of the case and the totality of the surrounding circumstances.”32 If the procedures were not unduly suggestive, “the trial identification testimony“—here, Murad‘s testimony at his
If the identification procedures were unduly suggestive, then we must consider whether the “in-court identification” is “independently reliable rather than the product of the earlier suggestive procedures.”35 An identification that is independently reliable could still be admissible, “although a strongly suggestive pretrial identification procedure necessarily makes
With this background in mind, we turn to the first step of our inquiry—whether the identification procedures employed by foreign governments during Murad‘s interrogation were unduly suggestive. A review of our caselaw suggests that identification procedures are unduly suggestive when they involve coercive elements employed to elicit a specific identification. As we have noted in the context of photographic presentations, “[t]he [photo] array must not be so limited that the defendant is the only one to match the witness‘s description of the perpetrator.”37 For example, it could be unduly suggestive if there is a “display” of “only the picture of a single individual who generally resembles the person [the witness] saw, or . . . the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized.”38
In United States v. Fernandez, we held that the use of a six-photo array where only one of the six persons depicted in the photographs even “remotely resemble[d]” the witness‘s description of the suspect was unduly suggestive.39 Similarly, in Dunnigan v. Keane, we found that a photo array consisting of “more than 30 pictures of one individual using an ATM card, and no pictures of anyone else,” was “highly suggestive.”40 And in United States v. Ciak, we noted that a witness‘s identification of a driver‘s license in the police officer‘s desk as that of the suspect-defendant was unduly suggestive because the police officer had previously identified a photograph of the defendant in front of the witness.41
To be sure, there is no bright-line rule that can be applied to determine whether an identification procedure is unduly suggestive. We have stated, however, that “a court must consider several factors, including the size of the [photo] array, the manner of presentation by the officers, and the contents of the array.”42 Thus, although not an exhaustive summary, we have found identification procedures to be unduly suggestive when they take at least one of three forms: (1) a very small number of photographs, which are in turn presented in a manner that suggests to the witness
By contrast, where, as here, there is a large display of photos arranged in no particular order or format, and the interrogators do not intimate which picture the witness should identify, the identification procedure is not impermissibly suggestive.43 Specifically, we have held that an array of more than 50 photographs depicting men of the same ethnicity, who appeared to be of the same age and had similar hair color, was not unduly suggestive.44 We have also held that an array of nine, or even as few as six, photographs was not so small as to suggest the identification of the suspect, where “several of the persons depicted met [the witness‘s] description of [the suspect], and there was no feature of [the suspect‘s] photo that made his stand out from all the rest.”45
On review of the record before us, we conclude that the procedures that resulted in Murad‘s identification of Al-Farekh were not unduly suggestive.
The totality of the circumstances surrounding the identification of Al-Farekh‘s photograph in Murad‘s home country confirm that the identification procedures were not employed to elicit a positive identification of Al-Farekh. To the contrary, Murad was shown approximately 300 photographs and was asked to identify the persons depicted in each photograph as part of the home country‘s counterterrorism efforts. Out of the 300 photographs that were shown to Murad, only five—each of them different—depicted Al-Farekh. Finally, Murad provided a detailed description of Al-Farekh‘s physical appearance and assisted in the creation of a computer sketch before he was shown the photograph of Al-Farekh that he identified out of the array.
Unsurprisingly, Al-Farekh does not argue that the identification procedures in Murad‘s home country were unduly suggestive. Instead, Al-Farekh‘s challenge is premised on the unsupported assertion that Murad was in fact shown Al-Farekh‘s photograph while Murad was in custody and was subjected to an interrogation environment that Murad described as 46
Even assuming, for the sake of argument, that Murad were shown Al-Farekh‘s photograph in there is no basis in the record to conclude that the procedures of the authorities were unduly suggestive. Murad did testify that the interrogation was 47 but he did so only in terms of the disorganization of the photo array and interrogation. The photo array was in no way unfair or prejudicial to Al-Farekh, who has not pointed to any evidence in the record suggesting, much less showing, that there were suggestive comments uttered during the interrogation or any other attempts to influence Murad‘s identification of Al-Farekh.
Finally, Al-Farekh argues that the identification is unreliable because there are some inconsistencies in Murad‘s testimony relating to when Murad first saw the photograph of Al-Farekh that Murad identified as depicting the person that he knew as al-Shami. That may be so. But none of those arguable inconsistencies relate to the potential suggestiveness of the identification procedures that resulted in the challenged identification. Any remaining “question as to the reliability of [Murad‘s] identifications [of Al-Farekh] goes to the weight of the evidence, not its admissibility.”48
In sum, we find no error, let alone “clear error,” in the admission of Murad‘s photo identification and his related testimony.
C. The Cross-Examination of Fingerprint Examiners in Light of the Brandon Mayfield Incident
The evidence against Al-Farekh included the testimony of an FBI fingerprint examiner, Kendra Sibley, who concluded that 18 latent prints recovered from the adhesive packing tape in the undetonated VBIED matched Al-Farekh‘s fingerprints. Al-Farekh argues that the District Court erroneously precluded him from properly cross-examining Sibley. Specifically, Al-Farekh challenges the District Court‘s exclusion of evidence relating to the Brandon Mayfield incident of May 2004, where FBI examiners examined one latent print in connection with a terrorist attack on the commuter trains in Madrid, Spain, and erroneously identified the fingerprint to be that of Mayfield, a U.S. citizen residing in Oregon.49
Relying on its discretionary authority under
Generally, we review for an abuse of discretion a judge‘s limitation on the scope of a defendant‘s cross-examination.53 “To find such abuse, we must conclude that the trial judge‘s evidentiary ruling[ ] [was] arbitrary and irrational.”54 But when the limitation directly implicates a defendant‘s constitutional right, such as his rights under the Confrontation Clause, we review that evidentiary ruling de novo.55 “Even if error is found, ‘a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.‘”56
The Confrontation Clause protects a criminal defendant‘s right to cross-examine witnesses.57 An undue limitation on cross-examination may violate the Sixth Amendment‘s Confrontation Clause if it prevents the defendant from, among other things, exposing a witness‘s biases, motivation, or incentives for lying, or eliciting testimony that is relevant and material to the defense.58
This is not to say, however, that the defendant has the unbridled prerogative of cross-examining witnesses about any topic, or in the manner that the defendant wishes. For example, once a defendant is able to impeach the witness‘s credibility, the extent to which the defendant is able “to hammer that point home to the jury” is “of peripheral concern to the Sixth Amendment.”59 Trial judges have broad discretion to limit the cross-examination of witnesses as appropriate to minimize the risk of harassment, undue prejudice, confusion of issues to be presented to the jury, redundancy of the evidence, or unnecessary delays in the trial.60 We have thus recognized that district courts have an independent “responsibility to [e]nsure that issues are clearly presented to the jury”61 by, for example, imposing reasonable limitations on cross-examination.62
Second, the District Court did not preclude Al-Farekh from highlighting the possible subjectivity of, and potential flaws in, fingerprint evidence through his cross-examination of Sibley. To the contrary, Al-Farekh had the opportunity to do just that. Sibley testified, for example, about the “level of subjectivity in latent print comparisons” and about the potential for mistakes by examiners in making false positive identifications.63 Other than being unable to rely on the Mayfield case and the report of the Department of Justice‘s Office of Inspector General prepared on that case, Al-Farekh was free to attack Sibley‘s methodology and fingerprint examinations as a type of evidence.
There are many types of evidence whose reliability and objectivity could be probed through effective cross-examination. By relying on scientific literature, expert testimony, or common-sense experiences, a defendant may highlight the reliability concerns that are sometimes associated with, for example, eyewitness identifications or confessions elicited by police interrogations.64 In doing so, however, trial judges rarely, if ever, allow defendants to rely on the facts of wholly unrelated cases to make their point. A ruling of that sort might confuse jurors.
Fingerprint evidence is no different. Here, the District Court‘s limitation on the cross-examination of Sibley is consistent with the understanding that a defendant may attack the subjectivity of fingerprint examinations as a category of evidence, but is not entitled without more to rely on a fingerprint examiner‘s mistakes in a wholly unrelated case to undermine the testimony of a different examiner.65
III. CONCLUSION
To summarize, we hold that:
- The District Court‘s ex parte, in camera adjudication of motions filed pursuant to
§ 4 of the Classified Information Procedures Act (“CIPA“) fell squarely within the authority granted by Congress. The District Court therefore properly exercised its authority under CIPA when it reviewed and adjudicated the Government‘s CIPA motions ex parte and in camera, notwithstanding defense counsel‘s security clearance. - The totality of the circumstances surrounding the identification of Al-Farekh‘s photograph—where he was shown hundreds of photographs arranged in no particular manner and where the interrogators did not utter prejudicial comments on the identification—were not unduly suggestive. Accordingly, the District Court did not err in admitting the out-of-court photo identification of Al-Farekh.
- The District Court acted well within its discretion in limiting Al-Farekh‘s cross-examination of the Government‘s fingerprint examiner to exclude references to the incident concerning Brandon Mayfield 16 years earlier because the fingerprint examiner here was not involved in the analysis in that earlier case that resulted in the misidentification of Mayfield‘s fingerprint.
For the foregoing reasons, the District Court‘s judgment is AFFIRMED.