Acquittal Motion Ghailani

8/8/2019 Acquittal Motion Ghailani

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------X

UNITED STATES OF AMERICA,

-v- 98 Cr. 1023 (S-10) (LAK)

AHMED KHALFAN GHAILANI,

Defendant.

---------------------------------------------------X

MEMORANDUM OF LAW IN SUPPORT OF

DEFENDANT AHMED KHALFAN GHAILANIS

MOTIONS FOR A JUDGMENT OF ACQUITTAL PURSUANT TO

FED.R.CRIM.P. 29, OR, ALTERNATIVELY,

FOR A NEW TRIAL PURSUANT TO FED.R.CRIM.P. 33

MICHAEL K. BACHRACH, ESQ.

276 Fifth Avenue, Suite 501

New York, New York 10001

Tel: (212) 929-0592

Fax: (866) 328-1630

PETER ENRIQUE QUIJANO, ESQ.

Quijano & Ennis, P.C.

381 Park Avenue South, Suite 701New York, New York 10016

Tel: (212) 686-0666

Fax: (212) 686-8690

Attorneys for Defendant

Ahmed Khalfan Ghailani

Case 1:98-cr-01023-LAK Document 1071 Filed 12/17/10 Page 1 of 39


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Table of Contents

Table of Authorities ........................................................................................ ii

I. Preliminary Statement .......................................................................... 1

II. Introduction .......................................................................................... 1

III. Pursuant to Rule 29(c) of the Federal Rules

of Criminal Procedure, Count 5 Should be

Dismissed Due to Insufficient Evidence .............................................. 2

A. For 284 Counts of Acquittal to Have Any Meaning

Count 5 Must be Dismissed ....................................................... 2

B. Regardless of Count 5, this Court Must Dismiss

Count 5B as a matter of Law.................................................... 12

IV. In the Alternative, a New Trial Should be

Ordered in the Interest of Justice Pursuant to

Rule 33 of the Federal Rules of Criminal Procedure ......................... 15

A. Since the Jurys Finding on Count 5 cannot be

Reconciled with its Finding on All Other Counts,

a New Trial is Warranted in the Interests of Justice................ 16

B. Permitting the Jury to Find Ghailani Guilty

on Count 5 Based Upon the Theory of

Conscious Avoidance was an Error that

can Only be Cured by a New Trial .......................................... 16

C. The Interests of Justice Require a New Trial

due to the Governments Improper Summation....................... 26

V. Conclusion .......................................................................................... 32



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Table of Authorities

FEDERAL CASES

Alberty v. United States,

162 U.S. 499 (1896) ............................................................................. 5

Darden v. Wainwright,

477 U.S. 168 (1986) ..................................................................... 27, 28

Donnelly v. DeChristoforo,

416 U.S. 637 (1974) ........................................................................... 28

Goldhirsh Group, Inc. v. Alpert,

107 F.3d 105 (2d Cir. 1997) ............................................................... 15

Hickory v. United States,

160 U.S. 408 (1895) ............................................................................. 5

Hicks v. United States,

150 U.S. 442 (1893) ............................................................................. 5

Napue v. Illinois,

360 U.S. 264 (1959) ........................................................................... 29

Starr v. United States,

164 U.S. 627 (1897) ............................................................................. 5

United States v. Aino-Marshall,

336 F.3d 167 (2d Cir. 2003) ............................................................... 22

United States v. Amuso,

21 F.3d 1251 (2d Cir. 1994) ................................................................. 5

United States v. Autuori,

212 F.3d 105 (2d Cir. 2000) ................................................................. 2

United States v. Ceballos,

340 F.3d 115 (2d Cir. 2003) ............................................................... 14



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United States v. Chen,

378 F.3d 151 (2d Cir. 2004)................................................... 11, 13, 14

United States v. Civelli,

883 F.2d 191 (2d Cir. 1989) ............................................................... 22

United States ex rel. Darcy v. Handy,

351 U.S. 454 (1956) ........................................................................... 15

United States v. Elias,

285 F.3d 183 (2d Cir. 2003) ............................................................... 28

United States v. Ferguson,

246 F.3d 129 (2d Cir. 2001) ............................................................... 15

United States v. Ferrarini,

219 F.3d 145 (2d Cir. 2000) ............................................................... 22

United States v. Flaharty,

295 F.3d 182 (2d Cir. 2002) ............................................................... 29

United States v. Friedman,

300 F.3d 111 (2d Cir. 2002) ............................................................... 20

United States v. Gabriel,

125 F.3d 89 (2d Cir. 1997) ................................................................. 21

United States v. Gaviria,

740 F.2d 174 (2d Cir. 1984) ............................................................... 20

United States v. Glenn,

312 F.3d 58 (2d Cir. 2002) ................................................................. 25

United States v. Guadagna,183 F.3d 122 (2d Cir. 1999) ................................................................. 2

United States v. Johnson,

513 F.2d 819 (2d Cir. 1978) ................................................................. 5



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United States v. Lewis,

797 F.2d 358 (7th Cir. 1986).............................................................. 25

United States v. Lorenzo,

534 F.3d 153 (2d Cir. 2008) ............................................................... 20

United States v. Mariani,

725 F.2d 862 (2d Cir. 1984) ................................................................. 2

United States v. Morgan,

385 F.3d 196 (2d Cir. 2004) ............................................................... 20

United States v. Palmieri,

456 F.2d 9 (2d Cir. 1972) ................................................................... 10

United States v. Pitre,

960 F.2d 1112 (2d Cir. 1992)............................................................. 21

United States v. Robinson,

430 F.3d 537 (2d Cir. 2005) ............................................................... 15

United States v. Rodriguez,

392 F.3d 539 (2d Cir. 2004)......................................................... 20, 21

United States v. Rodriguez,

983 F.2d 455 (2d Cir. 1993)................................................... 21, 22, 23

United States v. Salameh,

152 F.3d 88 (2d Cir. 1998) ................................................................. 25

United States v. Salerno,

937 F.3d 797 (2d Cir. 1991) ............................................................... 31

United States v. Samaria,239 F.3d 228 (2d Cir. 2001) ............................................................... 21

United States v. Sanchez,

969 F.2d 1409 (2d Cir. 1992)............................................................. 15



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United States v. Shareef,

190 F.3d 71 (2d Cir. 1999) ........................................................... 27, 28

United States v. Snype,

441 F.3d 119 (2d Cir. 2006) ............................................................... 15

United States v. Terry,

702 F.2d 299 (2d Cir. 1983) ................................................................. 4

United States v. Torres,

604 F.3d 58 (2d Cir. 2010) ............................................................. 6, 20

United States v. United States Gypsum Co.,

438 U.S. 422 (1978) ........................................................................... 29

United States v. Wilson,

610 F.3d 168 (2d Cir. 2010) ............................................................... 26

STATE CASES

State v. Anthony,

354 N.C. 372, 555 S.E.2d 557 (NC 2001) ......................................... 25

STATUTES AND OTHER AUTHORITIES

18 U.S.C. 844 ................................................................................ 1, 3

Fed.R.Crim.P. 29 ................................................................. 1, 2, 10, 16,

32

Fed.R.Crim.P. 33 ................................................................. 1, 2, 15, 16,

32

Fed.R.Evid. 801.................................................................................. 32

Mehler, Gleeson, James, Federal Criminal Practice:

A Second Circuit Handbook, 31-7 (2010 Edition).......................... 22

Sand, Modern Federal Jury Instructions, Instr. 6-3.............................. 5



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I. Preliminary Statement

We respectfully submit this Memorandum of Law in support of

Defendant Ahmed Khalfan Ghailanis Rule 29 motion for a judgment of

acquittal notwithstanding the jury verdict, or, in the alternative, Rule 33

motion for a new trial in the interest of justice. For the reasons that follow,

Ghailani submits that his conviction should be vacated and the charges either

dismissed or remanded for retrial.

II. Introduction

Ahmed Khalfan Ghailani was convicted of one count of Conspiracy

to Destroy United States Buildings and Property in violation of 18 U.S.C.

844(n) (Count 5), but was acquitted of all other counts, including, four

additional counts of conspiracy alleging a conspiracy to kill United States

nationals, to murder, to use weapons of mass destruction, and to attack

national defense utilities, and 280 substantive counts charging, in various

forms, the bombing of the United States Embassies in Nairobi, Kenya, and

Dar es Salaam, Tanzania, as well as the murder of the 224 individuals who

died as a result of said bombings.

In light of the overwhelming statement of the jury acquitting Ghailani

on all but one count of conspiracy, as well as every single substantive count,

the question for this Court now is whether sufficient evidence remains to



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have convicted Ghailani of the elements of Count 5 that would not be

inconsistent with the identical conduct to which he was acquitted on Counts

1, 3, 4, and 6 to 285. For the reasons that follow, we respectfully submit that

the answer is no, and that Ghailanis conviction should be dismissed

pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure, or, in the

alternative, vacated and a new trial ordered pursuant to Rule 33 of the

Federal Rules of Criminal Procedure.

III. Pursuant to Rule 29(c) of the Federal Rulesof Criminal Procedure, Count 5 Should be

Dismissed Due to Insufficient Evidence

A. For 284 Counts of Acquittal to Have Any Meaning

Count 5 Must be Dismissed

The standard of proof to be applied to a Rule 29(c) motion is that

when viewing all inferences in the light most favorable to the government,

see United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000), the Court

must determine whether upon the evidence, giving full play to the right of

the jury to determine credibility, weigh the evidence, and draw justifiable

inferences of fact, a reasonable mind might fairly conclude guilt beyond a

reasonable doubt. United States v. Guadagna, 183 F.3d 122, 129 (2d Cir.

1999), quoting United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984).

Count 5, the sole count of conviction, charged Ghailani with

Conspiracy to Destroy Buildings and Property of the United States in



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violation of 18 U.S.C. 844(n). Specifically, Count 5 alleged that Ghailani

and others unlawfully, willfully and knowingly combined, conspired,

confederated and agreed unlawfully to maliciously damage and destroy, and

attempt to damage and destroy, by means of fire and explosives, buildings,

vehicles and other personal and real property in whole or in part owned and

possessed by, and leased to, the United States and departments and agencies

thereof, in violation of Title 18, United States Code, Section 844(f)(1).

Redacted Indictment at 18.1

Count 5 further alleged that [i]t was a part and an objective of said

conspiracy that the defendant and his co-conspirators would and did: (i)

bomb American facilities anywhere in the world, including the American

embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, (ii) attack

employees of the American Government stationed at those facilities,

including the American embassies in Nairobi, Kenya and Dar es Salaam,

Tanzania, and (iii) engage in conduct with the result of such conduct directly

and proximately causing the death of persons, in violation of Title 18,

United States Code, Section 844(f)(3). Redacted Indictment at 19.

1 Citations to Defendants Redacted Indictment refer to the version of

Defendants Superseding Indictment that was provided by the Government to this Court,

and in turn provided to the jury, on November 10, 2010. A copy of DefendantsRedacted Indictment is annexed hereto as Defendants Exhibit A.



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Taking all inferences in the light most favorable to the Government,

an argument can be made that the Governments proof established that

Ghailani: (1) purchased the truck that was used to destroy the United States

embassy in Dar es Salaam, Tanzania; (2) purchased some of the gas

cylinders used to create the explosive device that destroyed the United States

embassy in Dar es Salaam, Tanzania; (3) was aware that a cell phone was

purchased by Rashid Saleh under Ghailanis name, and that the cell phone

was used by one or more of Ghailanis co-defendants; (4) knew and

associated with one or more of his co-defendants; (5) was present when one

or more overt acts charged in the Indictment occurred; and (6) flew to

Pakistan the day before the Embassy bombings occurred on a plane also

transporting one or more of his co-defendants. Nonetheless, we respectfully

submit that those isolated circumstantial facts standing alone, without proof

that Ghailani had the requisite knowledge and intent necessary to join the

conspiracy charged in Count 5, were insufficient to support a conviction on

that count.

As this Court charged the jury, it is impermissible to infer

participation in a conspiracy from mere association. See Jury Instructions at

7; accord Sand, Modern Federal Jury Instructions, Instr. 6-4, citing, inter

alia, United States v. Terry, 702 F.2d 299 (2d Cir. 1983); United States v.



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Johnson, 513 F.2d 819 (2d Cir. 1978). Similarly it is also impermissible to

infer participation in a conspiracy from mere presence. See Jury Instructions

at 7; accord Sand, Modern Federal Jury Instructions, Instr. 6-3, citing, inter

alia, Hicks v. United States, 150 U.S. 442 (1893). Further, while the flight

of a defendant after he knows he is to be accused of a crime may tend to

prove that the defendant believed that he was guilty evidence of flight of

a defendant may not be used as a substitute for proof of guilt. Flight does

not create a presumption of guilt. Sand, Modern Federal Jury Instructions,

Instr. 6-9, citing, inter alia, Starr v. United States, 164 U.S. 627 (1897);

Alberty v. United States, 162 U.S. 499 (1896); Hickory v. United States, 160

U.S. 408 (1895); United States v. Amuso, 21 F.3d 1251 (2d Cir. 1994).

Here, no witness testified to any statements or actions made by

Ghailani that established direct proof of his involvement in the conspiracy

charged in Count 5. No evidence was introduced that established such direct

proof, and indeed no arguments were made by the Government alleging

Ghailanis connection specifically to the elements of Count 5, as opposed to

general claims relevant to all counts of the Indictment (i.e., the allegations

rejected by the jury that Ghailani knowingly and intentionally participated in

the Embassy bombings). What was left was merely the connection of

distinct and isolated acts, which at best could make out a circumstantial case



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reliant upon the theory of conscious avoidance. See United States v. Torres,

604 F.3d 58, 65-66 (2d Cir. 2010) (discussing requirements of conscious

avoidance in context of charges of conspiracy). Even that connection,

however, we respectfully submit was not established.

The Governments case against Ghailani boiled down to three

principle themes: (1) Ghailani conspired to destroy the United States

embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya; (2) Ghailani

aided and abetted the bombings of the embassies; and (3) Ghailanis conduct

was undertaken with the intent to kill all those individuals who died as a

result of the bombings. The jurys verdict, however, clearly rejected all

three of these themes.

The jury, of course, is never required to take all evidence in the light

most favorable to the Government. Instead, the jury was correctly permitted

to interpose their own opinions as to whether the Governments witnesses

were credible and worthy of belief, as well as whether sufficient evidence

existed to convict Ghailani beyond a reasonable doubt. See Jury Instructions

at 2, 64. Ghailanis acquittal on all substantive counts, and all but one

conspiracy count, firmly establishes that the jury did not believe the

Government had proved its case.



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So how then does one explain the sole count of conviction? And,

standing alone, did sufficient evidence exist to establish Ghailanis guilt

beyond a reasonable doubt of whatever distinguished Count 5 from the

remainder of the indictment?

To answer these questions, it is necessary to compare the elements of

Count 5 to the elements of the counts of acquittal in order to ascertain what

distinguishes Count 5 from the required elements of the acquitted conduct.

As evinced by the following chart, it appears that the sole distinguishing

factor is that Count 5 permits a conviction for participation in a conspiracy

to destroy United States buildings and property anywhere in the world, not

simply the United States embassies in Nairobi, Kenya, and Dar es Salaam,

Tanzania. We respectfully submit that if such is the case, then there should

be no question that Count 5 must be dismissed as a matter of law since

absolutely no evidence was presented at trial that could establish Ghailanis

participation in a conspiracy unrelated to the conspiracies to bomb the

United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania.

Count # Description Elements/Objects Verdict

1 Conspiracy to Kill U.S. Nationals

(1) Murder U.S. nationals anywhere in the world;(2) kill U.S. nationals employed at the U.S.

Embassies in Dar es Salaam, TZ, & Nairobi, KY;

(3) engage in conduct to conceal the activities

and means and methods of the conspirators by,

inter alia, establishing front companies, providing

false identity & travel documents, engaging in

coded correspondence, providing false

information to authorities in various countries &

seeking to detect & kill informants. Not Guilty



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3 Conspiracy to Murder

(1) Kill officers and employees of the U.S.; (2)

kill internationally protected persons; (3) engage

in conduct to conceal the activities and means

and methods of the conspirators by, among other

things, establishing front companies, providing

false identity and travel documents, engaging in

coded correspondence, providing false

information to authorities in various countries

and seeking to detect and kill informants. Not Guilty

4

Conspiracy to Use Weapons of Mass

Destruction Against Nationals of the U.S.

(1) Bomb U.S. embassies in Nairobi, KY, and

Dar es Salaam, TZ, and the employees of the

U.S. Government stationed at those embassies (at

15); (2) "against property owned, leased, and

used by the U.S." (at 14). Not Guilty

5

Conspiracy to Destroy Buildings and

Property of the U.S.

(1) Bomb U.S. facilities anywhere in the world,

including the U.S. embassies in Nairobi, KY,

and Dar es Salaam, TZ; (2) attack employees

of the U.S. Government stationed at those

facilities; (3) engage in conduct that directly or

proximately causes death. Guilty

6

Conspiracy to Attack National Defense

Utilities

(1) Intentionally injure, interfere with and

obstruct the national defense of the U.S., (2)

combined, conspired, confederated and agreed

together and with each other to injure, destroy,

contaminate, and infect national-defense

material, national-defense premises and national

defense utilities of the U.S. Not Guilty

7

Bombing of the U.S. Embassy in Nairobi,

Kenya

(1) Detonated an explosive device that damaged

and destroyed the U.S. embassy in Nairobi, KY;

(2) directly or proximately caused the death of

213 persons. Not Guilty

8Bombing of the U.S. Embassy in Dar esSalaam, Tanzania


and destroyed the U.S. embassy in Dar es

Salaam, TZ; (2) directly or proximately causedthe death of 11 persons. Not Guilty

9

Use of Weapons of Mass Destruction against

Nationals of the U.S. in Nairobi, Kenya

(1) Attacked U.S. embassy in Nairobi, KY, with

a bomb; (2) resulting in death. Not Guilty

10

Use of Weapons of Mass Destruction against

Nationals of the U.S. in Dar es Salaam,

Tanzania

(1) Attacked U.S. embassy in Dar es Salaam, TZ,

with a bomb; (2) resulting in death. Not Guilty

11-223 Murders in Nairobi, Kenya


and destroyed the U.S. Embassy in Nairobi, KY;

(2) resulting in the direct and proximate cause of

the specific death of 213 individuals (each count

listing a separate individual). Not Guilty

224-234 Murders in Dar es Salaam, Tanzania


and destroyed the U.S. Embassy in Dar esSalaam, TZ; (2) resulting in the direct and

proximate cause of the specific death of 11

individuals (each count listing a separate

individual). Not Guilty

235-275

Murder of Employees of the U.S. in Nairobi,

Kenya

Murder of officers and employees of the U.S.

Govt and such persons assisting those officers

and employees in the performance of their duties

(each count listing a separate individual). Not Guilty



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276

Attempted Murder of Employees of the U.S.

in Nairobi, Kenya

Attempted murder of officers and employees of

the U.S. Govt and such persons assisting those

officers and employees in the performance of

their duties. Not Guilty

277-278

Murder of Employees of the U.S. in Dar es

Salaam, Tanzania

Murder of officers and employees of the U.S.

Govt and such persons assisting those officers

and employees in the performance of their duties


279

Attempted Murder of Employees of the U.S.

in Dar es Salaam, Tanzania

Attempted murder of officers and employees of

the U.S. Govt and such persons assisting those

officers and employees in the performance of

their duties. Not Guilty

280-281

Murder of Internationally Protected Persons

in Nairobi, Kenya

Murder of representatives, officers, employees

and agents of the U.S. Govt who at the time and

place concerned were entitled pursuant to

international law to special protection against

attack upon their persons, freedom, and dignity


282

Attempted Murder of Internationally

Protected Persons in Nairobi, Kenya

Attempted Murder of the Ambassador of the

United States to Kenya, and representatives,

officers, employees and agents of the U.S. Govt

who at the time and place concerned were

entitled pursuant to international law to special

protection against attack upon their persons,

freedom, and dignity. Not Guilty

283

Attempted Murder of Internationally

Protected Persons in Dar es Salaam, Tanzania

Attempted Murder of the Ambassador of the

United States to Tanzania, and representatives,

officers, employees and agents of the U.S. Govt

who at the time and place concerned were

entitled pursuant to international law to special

protection against attack upon their persons,

freedom, and dignity. Not Guilty

284

Using and Carrying an Explosive During

Commission of a Felony

Use and carrying of an bomb in connection with

the attacks on the U.S. embassies in Nairobi, KY,and Dar es Salaam, TZ (Only applicable had

there been a conviction on Count 1.) Not reached

285

Using and Carrying a Dangerous Devise

During the Bombing of the U.S. Embassy in

Nairobi, Kenya

Use and carrying of an explosive device during

and in relation to the bombing of the U.S.

Embassy in Nairobi, KY (Only applicable had

there been a conviction on Count 7.) Not reached

286

Using and Carrying a Dangerous Devise

During the Bombing of the U.S. Embassy in

Dar es Salaam, Tanzania

Use and carrying of an explosive device during

and in relation to the bombing of the U.S.

Embassy in Dar es Salaam, TZ (Only applicable

had there been a conviction on Count 8.) Not reached

A straightforward comparison of the counts charged against Ghailani

reveals that the only counts to charge Ghailani with conduct exclusive of the

embassy bombings were Counts 1, 3, 5, and 6. Further, the only counts



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substantive or inchoate to charge conduct exclusive of murder, or

attempted murder, were Counts 4 and 5. Thus, by simple process of

elimination, the only count to charge conduct exclusive of the embassy

bombings and exclusive of murder, attempted murder, and conspiracy to

commit murder, was Count 5. However, there was no evidence that

Ghailani was a member of a conspiracy to destroy buildings and property

that did not include the United States embassies in Kenya and Tanzania, and

no evidence that he was even remotely aware of that specific objective the

sole distinguishing element that sets Count 5 apart from the remainder of the

Indictment.

As a result, we respectfully submit that as a matter of law the sole

conviction on Count 5 cannot stand in light of the acquittal on all other

applicable counts of this 308-count indictment. Further, here the general

Rule 29 calculus is complicated by the fact that the jury convicted Ghailani

on one sole count of an extensive multi-count indictment charging Ghailani

with 285 counts of interrelated and overlapping conduct. In such cases, the

question becomes not simply whether the count can survive in complete and

total isolation, but whether the necessary proof of the acquitted conduct

is identical [to] that required to convict on the sole count of conviction.

United States v. Palmieri, 456 F.2d 9, 12 (2d Cir. 1972); see also United



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States v. Chen, 378 F.3d 151, 164 (2d Cir. 2004). In the rare instances when

such is the case, dismissal is warranted.

As the Second Circuit explained, we have recognized that as a matter

of law, acquittal on a substantive charge does not prevent a conviction for a

conspiracy to commit the offense substantively charged unless the necessary

proof on the substantive charge is identical [to] that required to convict on

the conspiracy count. Chen, 378 F.3d at 164 (emphasis added). Here, the

overt acts alleged in Count 5 were identical to those alleged in the other

conspiracy counts. See, e.g., Redacted Indictment at 20. Further, once the

identical proof of the other charges is eliminated, insufficient proof remains

regarding the sole distinguishing element of the sole count of conviction.

Specifically, to be found guilty of Count 5, the jury was required to

find that Ghailani had knowledge of at least one of the counts unlawful

objectives, namely, that Ghailani knowingly and intentionally joined the

conspiracy to: (1) bomb United States facilities anywhere in the world,

including the United States embassies in Nairobi, Kenya, and Dar es Salaam,

Tanzania; and/or (2) attack employees of the United States government

stationed at those facilities, including the United States embassies in Nairobi

and Dar es Salaam.



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The problem with sustaining Ghailanis conviction on Count 5 is that

Ghailani was specifically acquitted of all of the substantive counts charging

his participation in the bombings of the United States facilities in Kenya and

Tanzania, as well as of all of the substantive counts charging the attack on

United States government employees stationed at those facilities. As a

result, the only possible way a conviction on Count 5 could stand is if the

jury concluded, beyond a reasonable doubt, that Ghailani entered into a

conspiracy to bomb United States facilities anywhere in the world, and/or

to attack the United States government employees stationed at those

facilities, exclusive of the embassy bombings in Kenya and Tanzania to

which Ghailani was acquitted. However, there simply was no proof nor

even argument linking Ghailani to conduct exclusive of the embassy

bombings.

B. Regardless of Count 5, this Court Must Dismiss

Count 5B as a matter of Law

Indeed, the inconsistency discussed above is particularly problematic

when examining the jurys finding with respect to Count 5B. To put it

simply, how could Ghailani be directly or proximately responsible for the

deaths of individuals to which there has either been no proof whatsoever

(i.e., bombings exclusive of the embassies) or to which Ghailani was fully

acquitted? To answer it just as simply, as a matter of law, he cant.



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Irrespective of this Courts conclusion regarding the validity of

Ghailanis conviction on Count 5, we respectfully submit that the jurys

findings with respect to Count 5B must be rejected pursuant to United States

v. Chen, supra, 378 F.3d 151, 164 (2d Cir. 2004), as a result of the complete

acquittal on all substantive counts charging Ghailanis involvement both in

the bombings and in the deaths that resulted. Most notably, the jurys

acquittal of Ghailani on Counts 7 and 8 simply cannot be reconciled with the

jurys finding on Count 5B.

Count 5B asked the jury to determine whether the Government had

proved that the defendants conduct in Count 5 [i.e., his involvement in the

conspiracy to destroy United States buildings and property] directly or

proximately caused death to a person other than a co-conspirator? See

Verdict Sheet at 1. Seeing as there was absolutely no evidence presented at

trial that Ghailanis conduct be it substantive or inchoate led to any

deaths whatsoever besides those individuals that perished in the embassy

bombings, the jurys finding on Count 5B could only have been referring to

the deaths that resulted during the embassy bombings. As a result, the jurys

finding on Count 5B that Ghailani was directly or proximately responsible

for the deaths that occurred as a result of the conspiracy to bomb the United

States embassies, must be compared to the jurys finding on Counts 7 and 8



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that Ghailani was not guilty of being the direct or proximate cause of those

exact same deaths.

Specifically, Counts 7 and 8 asked the jury to determine whether

Ghailani was guilty of the substantive offense of bombing the United States

embassies in Kenya and Tanzania. Both counts also required a finding that

Ghailani directly or proximately caused the death of the 224 individuals that

were killed. The jury found, however, that Ghailani was not guilty of such

conduct. As such, in the case of Counts 5B, 7, and 8, the necessary proof

on the substantive charge [Counts 7 and 8] [was] identical [to] that required

to convict on the conspiracy count [Count 5B], Chen, 378 F.3d at 164,

namely that Ghailanis specific conduct resulted in the direct or proximate

cause of the death of those individuals that perished during the embassy

bombings.

Therefore, while we strongly believe that Count 5 must be dismissed

as a matter of law, irrespective of this Courts determination on Count 5, we

respectfully submit that Count 5B must independently be dismissed as a

matter of law as well. See Chen, 378 F.3d at 164; see also United States v.

Ceballos, 340 F.3d 115, 125 (2d Cir. 2003) ([t]he jurys role as the finder of

fact does not entitle it to return a verdict based only on confusion[ or]

speculation ...; its verdict must be reasonably based on evidence presented at



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trial), quoting, Goldhirsh Group, Inc. v. Alpert, 107 F.3d 105, 108 (2d Cir.

1997).

IV. In the Alternative, a New Trial Should be

Ordered in the Interest of Justice Pursuant to

Rule 33 of the Federal Rules of Criminal Procedure

Under Rule 33 of the Federal Rules of Criminal Procedure, this Court

may vacate any judgment and grant a new trial if the interest of justice so

requires. Fed.R.Crim.P. 33(a). Although the burden of showing essential

unfairness is on the defendant, United States ex rel. Darcy v. Handy, 351

U.S. 454, 462 (1956) (citations omitted), the Court must strike a balance

between weighing the evidence and credibility of witnesses and not wholly

usurp[ing] the role of the jury. United States v. Ferguson, 246 F.3d 129,

133 (2d Cir. 2001). As a result, [t]he ultimate test on a Rule 33 motion is

whether letting a guilty verdict stand would be a manifest injustice.

Ferguson, 246 F.3d at 134 (citation omitted); see United States v. Snype,

441 F.3d 119, 140 (2d Cir. 2006). Similarly, the rule itself gives this Court

broad discretion to set aside a jury verdict and order a new trial to avert a

perceived miscarriage of justice. United States v. Sanchez, 969 F.2d 1409,

1413 (2d Cir. 1992); see United States v. Robinson, 430 F.3d 537, 543 (2d

Cir. 2005).



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Here, we respectfully submit that there are three bases upon which to

grant a new trial. First, the irreconcilability between the sole count of

conviction and Ghailanis acquittal on all other counts of the Indictment,

which, without dispute, all arose out of the exact same conduct and

evidence. A new trial is also warranted based upon this Courts inclusion of

a conscious avoidance charge over the objections of defense counsel, see Tr.

2060, 2611-2613, as well as due to the Governments improper summation,

see Tr. 2398.

A. Since the Jurys Finding on Count 5 cannot be Reconciled

with its Finding on All Other Counts, a New Trial is

Warranted in the Interests of Justice

The first basis for a new trial has already been discussed in the context

of Rule 29(c), so for sake of brevity we hereby incorporate those arguments

into Defendants Rule 33 motion and simply request a new trial in the

interests of justice on this first ground only if this Court is not convinced that

the more severe remedy of a Rule 29(c) dismissal has not been met.

B. Permitting the Jury to Find Ghailani Guilty on Count 5

Based Upon the Theory of Conscious Avoidance was an

Error that can Only be Cured by a New Trial

Turning to the second basis for a new trial, this Courts decision to

instruct the jury on the theory of conscious avoidance, we first note that we

are not objecting to the specific language used by this Court to explain the



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term. To the contrary, we believe this Courts supplemental instruction on

conscious avoidance was an accurate statement of the law. See also Tr.

2636 (Government agreeing that this Courts supplemental instruction was

legally sufficient: Supplemental instruction, there is certainly nothing

legally wrong with that.)

Our present objection pertains to this Courts decision to instruct the

jury on the theory itself regardless the specific language in this case, and

this Courts refusal to correct such decision when later given the opportunity

to do so.

During the charge conference defense counsel specifically objected to

charging the jury on the theory of conscious avoidance.

MR. BACHRACH: Your Honor, the defense does

not believe conscious avoidance is appropriate in

this particular case. There has been no evidence

akin to a conscious avoidance. Generally a

conscious avoidance would be used if, for

example, we had a narcotics conspiracy, lets say a

pharmacy conspiracy where pharmacists are filling

false prescriptions and doing so where anyone

would know that these were false prescriptions and

they were turning their heads and continuing to fill

them and diverting loads and loads of narcotics to

the streets in that manner.

Obviously, that would be a time when they could

be held accountable for looking the other than

way. We dont believe the evidence here is

sufficient for such a charge.



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(Tr. 2060.) This Court overruled Defendants objection (Tr. 2062), but the

issue of whether or not to charge the jury with this theory came up again

during jury deliberations as a result of a jury note seeking clarification of the

term (see Ct. Exhibit AC).

Specifically, the jurys note asked:

On page 9, lines 8 through 10, our instructions say

conscious avoidance cannot be used as a

substitute for finding that the defendant knowingly

joined the conspiracy, that is that the defendant

knew that he was becoming a party to anagreement to accomplish an alleged illegal

purpose. Does this alleged illegal purpose have

to be the illegal objective defined in each specific

conspiracy count or simply be some illegal

purpose?

(Ct. Exhibit AC.)

This jurys question was quite apt, and by no means easy to

immediately answer, however, after reflection the defense did once again

come to the conclusion that the concept of conscious avoidance should not

be applied to this case.

MR. ZISSOU: Im asked by my colleagues just to

add one more thing. Again, I know you dont like

going back to the well too often or more than once,that is, but our position is that in a multiple

conspiracy case, we do not think the charge should

apply in any event.

All Im suggesting to you, if it turns out that in

retrospect or in light of a new day that we were



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correct that the conspiracy that the conscious

avoidance charge should not have been given,

there is no reason to leave this jury with this

impression. Theyre still here. We can still

correct it. It could be still be done properly.

(Tr. 2611-13.) This Court acknowledged, It is a sufficiently important

point that Im not going to answer without thinking about it some more, but

then in the meantime invite[d] both sides to submit a proposed

supplemental charge (Tr. 2613), which of course both parties did without

hesitation to comply with this Courts request. Ultimately, however, this

Court determined that it would not instruct the jury to discard the prior

instruction on conscious avoidance, and instead endeavored to clarify the

meaning of the term.

Again, while we still believe that this Court was completely accurate

in the content of its supplemental charge, we also still maintain that the

correct course would have been to have never instructed the jury on the

theory of conscious avoidance to begin with, and then to tell the jury to

disregard the instruction when the opportunity later arose to do so during the

jurys deliberations. While certain bells cannot be unrung, we respectfully

submit that this is one that could have been quite easily.

As the Second Circuit recently explained, conscious avoidance allows

a jury to find guilt based upon circumstantial proof of knowledge, provided



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there exists at least the degree of criminal intent necessary for the

substantive offense itself. United States v. Torres, supra, 604 F.3d 58, 65

(2d Cir. 2010). Proof that the defendant engaged in suspicious behavior,

without proof that he had knowledge that his conduct involved [an unlawful

objective], is not enough to support his conviction for conspiracy to [commit

the unlawful objective]. Torres, 604 F.3d at 66, citing, United States v.

Lorenzo, 534 F.3d 153, 160-62 (2d Cir. 2008).

To sustain a conspiracy conviction, the government must present

some evidence from which it can reasonably be inferred that the person

charged with conspiracy knew of the existence of the scheme alleged in the

indictment and knowingly joined and participated in it. United States v.

Rodriguez, 392 F.3d 539, 545 (2d Cir. 2004) (internal quotation marks

omitted), quoting, United States v. Morgan, 385 F.3d 196, 206 (2d Cir.

2004); United States v. Gaviria, 740 F.2d 174, 183 (2d Cir. 1984). Proof

that the defendant knew that some crime would be committed is not

enough. Rodriguez, 392 F.3d at 545, quoting, United States v. Friedman,

300 F.3d 111, 124 (2d Cir. 2002) (emphasis in original).

Since the inchoate and substantives charges were all specific intent

crimes, the Government was required to establish that [Ghailani]

knowingly and intentionally participated in the [specific charged crimes]



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involving [his alleged co-conspirators]. Rodriguez, 392 F.3d at 545, citing,

Morgan, 385 F.3d at 206; United States v. Samaria, 239 F.3d 228, 231 (2d

Cir. 2001); United States v. Pitre, 960 F.2d 1112, 1121 (2d Cir. 1992). The

question before this Court now, is whether the facts of this case warranted an

instruction on conscious avoidance at all.

The Second Circuit has consistently held that a conscious avoidance

instruction is warranted when a defendant claims to lack some specific

aspect of knowledge necessary to conviction but where the evidence may be

construed as deliberate ignorance. United States v. Gabriel, 125 F.3d 89,

98 (2d Cir. 1997). At first blush, that description then might seem quite

appropriate to Ghailanis case, however, we respectfully submit that upon

further consideration it should not.

A conscious avoidance instruction is warranted if the defendants

knowledge and intent are in dispute and the evidence presented at trial

would allow a reasonable juror to conclude that the defendant was aware of

a high probability of the fact in dispute and consciously avoided confirming

that fact. United States v. Rodriguez, 983 F.2d 455, 458 (2d Cir. 1993).

Building upon both of these elements, treatises addressing the subject

explain that the Governments evidence must include proof of red flags,

that is, facts that placed the defendant on notice of a high probability that,



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for example, he possessed contraband. Mehler, Gleeson, James, Federal

Criminal Practice: A Second Circuit Handbook, 31-7 at 621 (2010

Edition).

In United States v. Aino-Marshall, 336 F.3d 167, 170 (2d Cir. 2003),

the Second Circuit explained:

[A] conscious avoidance instruction may be given

only (i) when a defendant asserts the lack of some

specific aspect of knowledge required for

conviction, United States v. Civelli, 883 F.2d 191,

194 (2d Cir. 1989), and (ii) the appropriate factualpredicate for the charge exists, i.e., the evidence is

such that a rational juror may reach the conclusion

beyond a reasonable doubt that the defendant was

aware of a high probability of the fact in dispute

and consciously avoided confirming that fact,

United States v. Rodriguez, [supra,] 983 F.2d 455,

458 (2d Cir. 1993). See also [United States v.]

Ferrarini, 219 F.3d [145,] 154 [2d Cir. 2000] (A

conscious avoidance instruction permits a jury to

find that a defendant had culpable knowledge of a

fact when the evidence shows that the defendant

intentionally avoided confirming the fact.).

However, as the Second Circuit further explained, a court may not

give a conscious avoidance charge if the evidence does not support it, Aina-

Marshall, 336 F.3d at 171, and a conscious avoidance instruction should be

issued only where it can be shown that the defendant decidednot to learn

the key fact, not merely ... failed to learn it through negligence, Aina-



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Marshall, 336 F.3d at 171 (underlining added), quoting, Rodriguez, 983 F.2d

at 458 (italics in original).

Indeed, in the context of the Ghailani trial, we respectfully submit that

use of the conscious avoidance instruction created a presumption that the

defense should never have been required to overcome, thereby allowing the

Government to establish Ghailanis membership in the conspiracy even

though it could not otherwise prove every element of the offense. If that

were to be generally permitted, then the Government could rely upon the

theory of conscious avoidance in any case where the evidence does not

prove beyond a reasonable doubt that a defendant knowingly joined a

conspiracy. Among other illogical results, the giving of such a charge, in the

absence of any evidence or red flags to support it, virtually demands that

the accused take the stand in his or her own defense to rebut this judicially

created presumption the presumption of innocence thus yielding to the

presumption of conscious avoidance.

To put it another way, think of a simple employee, ABLE, of a

company engaged in price fixing that is owned by BAKER. The employee,

ABLE, goes to work everyday and types up the price list, buys the office

supplies, and organizes meetings that are hosted by BAKER and attended by

the other price fixers. After those meetings ABLE drinks orange soda from



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a Fanta soda bottle while he cleans up and BAKER puts ABLES name on

some of the invoices. One of the invoices finds its way to ABLE and he

picks it up and reads it but since there is nothing nefarious about it, he thinks

nothing of it.

BAKER finds out about an FBI investigation and flees to Pakistan

taking ABLE with him because he needs somebody to cook for him. ABLE

eventually is charged with aiding and abetting the price fixing conspiracy

and at his trial his lawyers advance the stupidity defense. There is not a

shred of additional evidence that he consciously avoided learning about the

objectives of the conspiracy or that he in any way shared in any of them.

Under those facts, if one were to permit the Government to rely on

conscious avoidance to establish ABLEs membership in the conspiracy,

wouldnt that render meaningless the concept of requiring the Government

to prove each and every element beyond a reasonable doubt? We

respectfully submit the answer is the same for Ghailani as it would be for

ABLE. If not, then the Government would be permitted to shift the burden

of proof in such a manner that would infringe upon the defendants

presumption of innocence.

To put it another way, had the embassies never been bombed, there

would have been no basis to conclude that Ghailani did anything that had an



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25

illegal purpose. He bought a truck. There was a cell phone in his name. He

was present and associated with his co-defendants. Again, if the embassies

had not been attacked, what circumstances surrounding Ghailanis conduct

would have evinced an intent to commit the specific crime of conspiracy to

bomb United States property? Absent the bombings, no one would have

ever suspected illegal conduct was afoot, so what evidence was there prior to

the bombings to suggest that Ghailani consciously avoided learning the

specific objectives of the conspiracy? We respectfully submit that for

conscious avoidance to have been applicable to this case, then the evidence

to support it must have taken place at the time of Ghailanis specific overt

acts, all of which occurred prior to the bombings.

Moreover, while the evidence of Ghailanis flight could have been

used to establish his consciousness of guilt, evidence of flight does not go to

show conscious avoidance but rather specific knowledge. See United States

v. Salameh, 152 F.3d 88, 157 (2d Cir. 1998) (per curiam); United States v.

Glenn, 312 F.3d 58, 68 (2d Cir. 2002); United States v. Lewis, 797 F.2d 358,

368 (7th Cir. 1986); see also State v. Anthony, 354 N.C. 372, 426, 555

S.E.2d 557, 591 (NC 2001) (proof of flight alone in a murder prosecution

will not be considered as evidence of premeditation and deliberation).

Obviously, if someone is getting on a plane to flee arrest, he is doing so



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26

because he knows he is in danger of arrest; therefore he cannot be someone

who has consciously avoided ever gaining that specific knowledge. As such,

we respectfully submit that it was error to permit the jury to find Ghailani

guilty of Count 5 based upon the theory of conscious avoidance. We further

submit that Count 5 must therefore be vacated and a new trial ordered in the

interests of justice to correct this structural flaw in the proceedings.

C. The Interests of Justice Require a New Trial

due to the Governments Improper Summation

Turning to the third and final basis for a new trial, the Governments

improper summation, we need not look long to find recent reversals on such

grounds. See, e.g., United States v. Wilson, 610 F.3d 168 (2d Cir. 2010)

(reversing sentence of death as a result of improper Government

summation). Here, the Governments rebuttal summation focused primarily

on an attempt to discredit Ghailanis dupe defense. However, at the end of

the Governments rebuttal summation, the Governments argument crossed

the line between fair argument and foul play, culminating in claims that were

completely inappropriate and directly contrary to arguments the Government

made pretrial. As will be discussed below, we respectfully submit that the

Governments final argument on the dupe defense went beyond what is

fair argument based upon the record, and as such requires a new trial to



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27

remedy the prejudice. See United States v. Shareef, 190 F.3d 71, 78 (2d Cir.

1999), citing, inter alia, Darden v. Wainwright, 477 U.S. 168, 181 (1986).

During the Governments rebuttal summation, the term dupe was

repeated approximately 41 times, and the dupe defense attacked by the

Government numerous times in various different manners, nearly all of

which we concede were fair argument. See, e.g., Tr. 2357, 2358, 2360,

2371, 2376, 2377, 2378, 2379, 2380, 2381, 2382, 2394, 2395, 2396, 2398,

2399, 2400, 2401, 2402, 2412, 2419, 2420. However, the one argument that

crossed the line came at the end of the Governments rebuttal summation

and was glaring:

There are hundreds and hundreds of names in this

indictment. Hundreds. And the thing to know

about killing on this scale is that killing on this

scale is horribl[e], its planned and its precise, and

its terribly sophisticated. And in the course of an

operation like that that cost us many lives, there is

no room for some dupe just to get led into the heart

of it. No room for a dupe because he might get

cold feet. And theres no room for a dupe because

he might talk to his friends. And theres no room

for a dupe because he might call the cops. And the

other thing about killing on this scale is theres no

room for a dupe because when its done the costs

are so high and so gruesome and so apocalypticthat anyone with a conscience, no dupe stays

silent in the face of being involved in this kindof thing. Thats why there are no dupes in this.

(Tr. 2419 [emphasis added].)



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The Second Circuit has consistently held that to warrant reversal

based upon improper comment during summation, or in this case, rebuttal

summation, the remarks must cause the defendant substantial prejudice by

so infecting the trial with unfairness as to make the resulting conviction a

denial of due process. SeeUnited States v. Shareef, supra, 190 F.3d 71,

78 (2d Cir. 1999), quoting, Darden v. Wainwright, supra, 477 U.S. 168, 181

(1986). As such, Remarks of the prosecutor in summation do not amount

to a denial of due process unless they constitute egregious misconduct.

Shareef, 190 F.3d at 78, quoting, Donnelly v. DeChristoforo, 416 U.S. 637,

647 (1974).

As explained in United States v. Elias, 285 F.3d 183, 190 (2d Cir.

2003), citing, Shareef, 190 F.3d at 78, In assessing whether prosecutorial

misconduct caused substantial prejudice, [the Second Circuit] has adopted

a three-part test: [1] the severity of the misconduct, [2] the measures adopted

to cure the misconduct, and [3] the certainty of conviction absent the

misconduct.

Obviously, we are not arguing that the Governments improper

summation was akin to a Brady violation, destruction of evidence, or any

other conduct of such nefarious nature. However, we do submit that the

Governments remarks were akin to a Napue violation, and as such amount



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to a denial of Ghailanis Due Process rights when viewed in the specific

context of this case. See Napue v. Illinois, 360 U.S. 264, 269, 1177 (1959)

(a conviction obtained through use of false evidence, known to be such by

representatives of the State, must fall under the Fourteenth Amendment

[t]he same result obtains when the State, although not soliciting false

evidence, allows it to go uncorrected when it appears).

There are two reasons why the Governments argument so offend

defense counsel: First, Ghailanis defense was not based upon withdrawal,

so an argument claiming that Ghailani should be found guilty because he did

not break away from his alleged co-conspirators and immediately report to

the police, placed a burden upon the defendant which the defense did not

affirmatively create. Cf. United States v. Flaharty, 295 F.3d 182, 192 (2d

Cir. 2002) (when the affirmative defense of withdrawal is raised in a

conspiracy case, the defendant has the burden of showing that he performed

affirmative acts that were inconsistent with the object of the conspiracy and

communicated in a manner reasonably calculated to reach co-conspirators,

quoting, United States v. United States Gypsum Co., 438 U.S. 422, 464

[1978]).

The defense was that Ghailani was a dupe. That he was used and

taken advantage of and lacked the necessary knowledge or intent to join the



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conspiracy. Even if the jury had found that Ghailani had some knowledge of

what was about to occur a conclusion that is refuted by his acquittal on

every count that required specific intent to kill or specific intent to destroy

the United States embassies in Kenya and Tanzania the argument that no

one who was duped would remain silent and fail to immediately go to the

police, was blatantly misleading, and not something that the Government

should have been permitted to comment upon absent the affirmative defense

of withdrawal.

Second, regardless whether the Governments comment would have

been ordinarily acceptable even absent a withdrawal defense, the comment

was particularly inappropriate in this case since the Government was well

aware that there were in fact many similar dupes that unbeknownst to the

jury figured out after the fact what had occurred but did not then

immediately report to the police. The most glaring example of this was

Hussein Abebe, a witness the Government relied upon pretrial as being an

innocent man who had been taken advantage of. See, e.g., Transcript of Pre-

Trial Hearing, dated, September 15, 2010, at 349-50, 352. Abebe, of course,

was also an individual that the Government was aware had spent eight years

in hiding doing everything to avoid coming forward to speak to the police

while being fully aware that he had information that would be relevant to the



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investigation into the embassy bombings. See, e.g., Post-Hearing

Memorandum of Law in Support of Defendant Ahmed Khalfan Ghailanis

Motion to Preclude the Testimony of Hussein Abebe, dated, September 29,

2010, at 8-9, 26-28 (discussing Abebes failure to voluntarily approach the

police with the information he had relevant to the embassy bombings).

Thus, based upon the Governments pretrial claim that Abebe was,

essentially, a dupe, coupled with its knowledge that Abebe willfully and

intentionally avoided reporting information to the police for approximately

eight years, the Government should not have been permitted to argue at trial

that no dupe stays silent in the face of being involved in this kind of thing

(Tr. 2419). Instead, the Governments rebuttal summation essentially

attempted to take the Abebe preclusion order and turn it on its head,

capitalizing with disingenuous arguments that it could never have made had

Abebe testified at trial this should not be permitted to stand. The

Government should not be permitted to make statements during rebuttal

summation that are directly opposed to what it claimed to be the truth just

weeks earlier, particularly since the defendants case had rested and his

summation complete. Cf. United States v. Salerno, 937 F.3d 797, 811 (2d

Cir. 1991) (the defense may introduce into evidence the Governments



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opening and closing arguments from an earlier related case as an admission

of a party-opponent against the Government under Fed.R.Evid. 801[d][2]).

For those reasons, Ghailani respectfully submits that a new trial is

warranted in the interest of justice to correct the manifest injustice that

occurred in his trial.

V. Conclusion

Wherefore, Defendant Ahmed Khalfan Ghailani respectfully requests

that the jury verdict as to Count 5 and Count 5B be vacated and the charges

dismissed pursuant to Rule 29(c), or, in the alternative, that his conviction be

vacated and remanded for retrial pursuant to Rule 33.

Dated: New York, New York

December 16, 2010

Respectfully submitted,

Michael K. Bachrach

Attorney for Defendant

Ahmed Khalfan Ghailani

On the brief

Michael K. BachrachSteve Zissou


Documents

Acquittal Motion Ghailani