UNITED STATES OF AMERICA v. NIZAR TRABELSI,
Criminal Action No. 06-89 (RDM)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
July XX, 2019
RANDOLPH D. MOSS, United States District Judge
Defendant Nizar Trabelsi is charged with conspiring to kill U.S. nationals outside the United States in violation of
Trabelis now moves, once again, to modify his SAMs and, although not covered by the SAMs, to modify other conditions of his confinement. Dkt. 170, Dkt. 183. He first argues that the SAMs should be modified to allow him to communicate with Berrou by telephone and video
As explained below, the Court will deny Trabelsi‘s motions. With respect to the SAMs, Trabelsi has not shown that the conditions imposed, although onerous, are not reasonably related to legitimate governmental interests. With respect to the other conditions of his confinement, the Northern Neck Regional Jail, where he is currently being held, has adequately addressed the concerns he raises. Finally, with respect to Trabelsi‘s request that the Court issue a subpoena to the Rappahannock Regional Jail, the government investigated the allegations at the Court‘s direction and found no corroboration, and, in any event, because Trabelsi is no longer being held at that facility, his allegations do not support modification of the SAMs.
I. BACKGROUND
In 2013, the Defendant was extradited to the United States from Belgium and housed in the Rappahannock Regional Jail (“RRJ“) until September 2018, when he was transferred to Northern Neck Regional Jail (“NNRJ“). Dkt. 185 at 3. On November 1, 2013, the then-Acting Attorney General issued SAMs pursuant to
The inmate is limited, within . . . reasonable efforts and existing confinement conditions, from having contact (including passing or receiving any oral, written, or recorded communications) with any other inmate . . . .that could reasonably foreseeably result in the inmate communicating (sending or receiving) information that could circumvent the SAM‘s intent of significantly limiting the inmate‘s ability to communicate (send or receive) threatening or other terrorism-related information.
Dkt. 185-2 at 6. Though the SAMs do not require administrative segregation, see Dkt. 185 at 4, which is a form of separation from the general prison population, both RRJ and NNRJ have determined that the Defendant should be held in administrative segregation. See Dkt. 185-3 at 1–2 (Back Decl. ¶¶ 5–6).
In 2014, Defendant challenged the SAMs provisions prohibiting statements from being divulged to a third party and those prohibiting him from communicating with members of the media, as well as non-SAMs provisions including the manner in which he was restrained by handcuffs during legal visits and restrictions on his recreation time. See Dkt. 37; Dkt. 42. Chief Judge Roberts denied these motions in large part, holding that the challenged conditions were reasonably related to legitimate governmental interests in preventing acts of violence and
Now, Trabelsi brings a different challenge to his conditions of confinement. He has filed two sets of motions, the first requesting modification of the conditions of confinement imposed by the SAMs and by NNRJ and the second seeking leave to file a subpoena on the prior facility at which he was held. See Dkt. 170; Dkt. 183; Dkt. 191. Defendant challenges the SAMs provisions (1) limiting his contact with other inmates; and (2) prohibiting him from communicating with Berrou via telephone. See Dkt. 170 at 8; Dkt. 183 at 10. These motions also challenge non-SAMs conditions imposed at NNRJ, including inadequate food and medical treatment, access to showers, and denial of a dedicated laptop computer for his legal use, see Dkt. 183 at 8–10; Dkt. 170 at 6–8, and allege mistreatment by prison officials and excessive charges for phone calls at the prior facility at which he was held, see Dkt. 183 at 9–10. Finally, the Defendant separately seeks leave to issue a third-party subpoena regarding his allegations of abuse at RRJ. See Dkt. 191.
II. LEGAL STANDARD
The government may subject a pretrial detainee “to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution.” Bell v. Wolfish, 441 U.S. 520, 536–37 (1979). As a general matter, “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). The D.C. Circuit has emphasized the deferential nature of this standard:
To prevent judicial overreaching into matters of prison administration, courts are to uphold prison regulations that impinge on inmates’ constitutional rights as long as those regulations are reasonably related to legitimate penological interests . . . a
stark departure from the inflexible strict scrutiny analysis that normally applies when the government infringes on constitutional rights.
Hatim v. Obama, 760 F.3d 54, 58 (D.C. Cir. 2014) (internal quotations and citations omitted). To determine if the restriction is reasonable, courts assess four factors: (1) whether there is a “valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it[;]” (2) “whether there are alternative means of exercising the right that remain open to prison inmates[;]” (3) what “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally[;]” and (4) whether there are ready alternatives. Turner, 482 U.S. at 89–91 (internal quotation marks omitted)). Courts, however, must undertake this analysis with the knowledge that “[t]he wide range of ‘judgment calls’ that meet constitutional and statutory requirements are confided to officials outside of the Judicial Branch.” Wolfish, 441 U.S. at 562; see also Turner, 482 U.S. at 84–85 (“Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.“).
III. ANALYSIS
A. SAMs Conditions
Defendant‘s challenge focuses on two particular provisions of the SAMs: (1) the provision limiting his contact with other inmates; and (2) the provision prohibiting him from speaking with Berrou via telephone. See Dkt. 170 at 8; Dkt. 183 at 10. Trabelsi argues that these conditions violate his First and Sixth Amendment rights1 and are “not reasonably related to
First, there is clearly a “valid, rational connection” between the challenged provisions and the “legitimate governmental interest put forward to justify it.” Turner, 482 U.S. at 89. The asserted government interest justifying both challenged provisions is the same: the 2018 SAMs indicate that “there continues to be a substantial risk that Trabelsi‘s communications or contacts with persons could result in death or serious bodily injury.” Dkt. 185-2 at 1. Both provisions are aimed at “preventing Trabelsi‘s conversations from being disseminated to third parties who may not be authorized to speak to him,” and the Court concurs with Judge Roberts that such restrictions are “logically connected to the government‘s interest in preventing acts of violence and terrorism.” United States v. Trabelsi, No. CR 06-89 (RWR), 2014 WL 12682266, at *3 (D.D.C. June 18, 2014). Here, the Government explains that they adopted the challenged SAMs to address the “substantial risk” of “death or serious bodily injury to persons” posed by Trabelsi‘s communication to third parties. Dkt. 185-2 at 5. The Government has presented evidence of Trabelsi‘s risk level. For example, the 2018 SAMs memo justifies the restrictions based on:
information provided [about] Trabelsi‘s proclivity for violence, including his plans to carry out terrorist attacks; his dedication to the cause of radical Islamist jihad, which has been unwavering; his ability and repeated efforts to influence others to act in furtherance of his cause; and his continuous disregard of SAM restrictions by attempting to pass information to third parties.
Trabelsi‘s arguments to the contrary challenge the sufficiency of the Government‘s evidence, rather than the fundamental connection between the SAMs and the Government‘s legitimate interest. For example, Trabelsi maintains that the Government‘s evidence regarding his risk level amounts to a “scant proffer of stale information,” Dkt. 170 at 4, that he “poses no demonstrable risk to the personal safety of others,” Dkt. 183 at 10, and that “in [his] long years of incarceration in the United States, there is not one instance of physical violence against anyone attributed to him,” Dkt. 186 at 4. However, in addition to the bases outlined in the 2018 SAMs, the Deputy Warden of NNRJ asserts that Trabelsi threatened her as recently as January 2019, yelling in her direction “I am going to kill someone! I give my life for my religion! I am going to kill someone here!” Dkt. 185-3 at 3 (Back Decl. ¶ 15); see also Dkt. 186 at 3 (Defendant “admit[ting] that this assertion “is troublesome and is a factor to be considered by the Court“). Taken together, the justification provided in the SAMs and this more recent threat demonstrate the reasonableness of the Government‘s judgment concerning the continued threatening nature of the Defendant. Perhaps most importantly, judgments about Trabelsi‘s risk level fall within the “wide range of judgment calls” that “are confided to officials outside of the Judicial Branch,” so long as those judgments “meet constitutional and statutory requirements.” Wolfish, 441 U.S. at 562 (internal quotation marks omitted). The link between the challenged provisions and the Government‘s goal of preventing Trabelsi‘s statements from being disseminated to unauthorized parties is clear.
That said, the government has identified a number of currently available measures to mitigate such effects. For example, the Defendant could take advantage of the opportunity to meet with a qualified mental health professional on a daily basis,3 to communicate with other relatives via telephone and with Berrou via written correspondence, and to engage in recreation for two hours per week. See Dkt. 185-2 at 11–12; id. at 14–15; Dkt. 185-3 at 2–3 (Back Decl ¶¶ 7, 14). And “to the extent that Trabelsi has refused to take [advantage of] his recreation time” or these other opportunities, “he cannot simultaneously complain that his lack of recreation [and other provided resources] has negatively affected his competency.” Trabelsi, 2014 WL 12682266, at *8. Again, the Court recognizes the gravity of these restrictions, and is mindful of the effect they may have on Trabelsi. However, “Supreme Court precedent teaches that alternative means of exercising the claimed right ‘need not be ideal, however; they need only be available.‘” Hatim, 760 F.3d at 61 (quoting Overton, 539 U.S. at 135). Thus, this factor weighs slightly in favor of the government.
Third, the Court must consider “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Turner, 482 U.S. at 90. Neither party discusses the effect continued telephone calls with Berrou might have on NNRJ resources, but it is self-evident that this accommodation would at least
Finally, the Court is convinced that there are no readily available alternatives to the restrictions, at least at this time, that would address the government‘s security concerns regarding communication to third parties. This is perhaps best illustrated by Trabelsi‘s continued attempts to violate the SAMs. For example, the 2018 SAMs memo describes multiple instances in which the defendant has demonstrated his interest in using other prisoners to communicate to third parties in contravention of the SAMs. See Dkt. 185-2 at 4–5 (describing incidents in January 2015, August 2015, September 2016, and March 2017 in which Trabelsi attempted to pass messages to third parties via other inmates). Indeed, Trabelsi has specifically sought to use telephone conversations with Berrou to communicate with other individuals in contravention of the SAMs. See, e.g., Dkt. 185 at 10 (in 2013, “multiple media outlets in Belgium reported on Berrou‘s discussion of the content of her calls with Trabelsi, including allegations of improprieties in his confinement conditions“); id. (in 2014, “Trabelsi requested that Berrou forward his regards to the Muslim community and tell the community about his situation“); id. at 11 (in 2016, Trabelsi “instructed [Berrou] . . . to record their conversations“); id. at 12–13 (in
The Court is, again, sympathetic to Trabelsi‘s concerns about the nature of these restrictions, particularly limiting telephone calls with his wife. As a result, the Court will deny Trabelsi‘s motion to modify his SAMs conditions, but will also order that the government reevaluate the appropriateness of this restriction after a period of 90 days.
B. Non-SAMs Conditions
The remainder of the Defendant‘s concerns focus on conditions of confinement that are not dictated by the SAMs. Trabelsi challenges separate conditions imposed at his current facility and at his former facility, and the Court will address these challenges in turn.
Trabelsi first challenges a number of non-SAMs conditions that he alleges are imposed by NNRJ, including: (1) “being fed food items which do not contain necessary nutrients, in the guise of providing him with a ‘high-fiber diet,‘” Dkt. 170 at 6; (2) not receiving necessary medical treatment or medication for his ulcer condition, Dkt. 183 at 8-9; (3) being housed in a cell that “makes it virtually impossible for him to shower with any regularity,” id. at 8; and (4) “being denied access to a dedicated laptop computer with which to review electronically stored material” concerning his case, Dkt. 170 at 6.
As indicated by the declaration of Major Phyllis Back, the Deputy Superintendent of NNRJ, the first three of these allegations are lacking in factual support. The medical department
Trabelsi‘s fourth request, regarding use of a dedicated laptop, is one that falls within the discretion and expertise of prison officials. It is uncontested that NNRJ has denied Trabelsi access to a dedicated laptop, and also that he has access to a dedicated communal laptop at his request. However, Trabelsi argues that “use of a computer available to other inmates would not permit [him] adequate opportunity to review the extensive discovery material in his case, and could result in the disclosure of both privileged and classified information to unauthorized persons.” Dkt. 170 at 6. NNRJ apparently has a practice of denying such requests because of
Finally, Trabelsi‘s motions contain a number of troubling allegations regarding mistreatment at RRJ, where he was previously housed. Defendant contends that:
correctional officials put hair in his food; refused him access to soap; gave him water from a toilet to drink; gave him floor cleaner to use instead of soap; left his light on all night; retaliated against him for complaining about his mistreatment to Chief Judge Roberts by shoving him into a wall . . . ; undressed him until he was naked; refused to allow him to wash; denied him access to a Koran; denied him access to a toilet for days; did not clean the urine and feces in his cell; and limited him to two cups of water in five days.
Dkt. 183 at 9. In addition, Trabelsi argues that he was “grossly overcharged for telephone calls” during his time at RRJ. Id. Trabelsi asserts that if such misconduct occurred, “perpetrated by employees of the same state agency” as his current facility, “this would bear directly upon the reasonableness of the draconian restrictions imposed” by the SAMs. Dkt. 197 at 2. He thus separately seeks leave to issue a third-party subpoena on RRJ. See Dkt. 191. These allegations
CONCLUSION
Trabelsi has failed to show that the restrictions imposed by the SAMs and by NNRJ are not reasonable, and has failed to show that any alleged mistreatment at a prior facility implicates this Court‘s consideration of his SAMs motion. For the foregoing reasons, Trabelsi‘s motions, Dkt. 170, Dkt. 191, are hereby DENIED. The Court, however, is sympathetic to Trabelsi‘s concerns about the restrictive nature of the SAMs, particularly the prohibition on telephone calls with Berrou. As a result, the Court also orders the government to reevaluate this condition within 90 days from the issuance of this opinion.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: July XX, 2019