DOJopposition.pdf

8/14/2019 DOJopposition.pdf

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1 ANDRBIROTTE JR.United tates Attorney2 ROBERT E. DUGDALEAssistant United States Attorney3 Chief Criminal DivisionPATRICK R. FITZGERALD (Cal. Bar No. 135512)4 Assistant United States AttorneyChief, National Security Section5 MELISSA MILLS (Cal. Bar No. 248529)Assistant United States AttorneyNational Security Section1300 United States Courthouse12 North Spring StreetLos Angeles, California 900128 elephone: 213) 894-4591/0627Facsimile: 213) 894-6436-mail: [email protected]@usdoj.gov

10 Attorneys for Plaintiffl ow UNITED STATES OF AMERICA

FILEDCLERK, L - S DISTRI T OURT

N O V 4CENTR t DTh tOT OF LIFORV

12 UNITED STATES DISTRICT COURT13 FOR THE CENTRAL DISTRICT OF CALIFORNIA14 UNITED STATES OF AMERICA, o. CR To e Determined15 Plaintiff, OVERNMENT S OPPOSITION TO16 EQUEST BY FEDERAL PUBLIC

V EFENDER FOR PROVISIONAL17 PPOINTMENT TO REPRESENT PAUL

PAUL ANTHONY CIANCIA, NTHONY CIANCIA; MEMORANDUM OFP O I N T S AND A U T H O R I T I E SDefendant.19202122232425262728

Case 2:13-mj-02894-DUTY Document 9 Filed 11/04/13 Page 1 of 26 Page ID #:53


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laintiff, United States of America, by and through its counsel2 of record, hereby opposes the November 3, 2013 request by the3 Federal Public Defender for an order appointing that agency to4 provisionally represent Paul Anthony Ciancia in this matter.5 he government s position is based upon the attached memorandum6 of points and authorities, the files and records in this case, and7 any other evidence or argument that the Court may consider.8 Dated: November 4, 2013 espectfully submitted,9 NDRBIROTTE JR.United States Attorney

10 ROBERT E. DUGDALEii ssistant United States AttorneyChief, Criminal Division1213 s/PATRICK FITZGERALD4 ELISSA MILLSAssistant United States Attorneys

15 Attorneys for Plaintiff16 NITED STATES OF AMERICA17

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MORNDUM OF POINTS ND UTHORITIES

On November 2, 2013, the government filed a federal complaintagainst Paul Anthony Ciancia ( Ciancia ) . The complaint allegesthat Ciancia entered Los Angeles International Airport on November

11 2013; approached a Transportation Security Administration ( TSA )security checkpoint; pulled an assault rifle out of his bag andfired multiple rounds at a TSA officer at point-blank range, killing

9 the officer; and then shot multiple other TSA officers and at least10 one passenger. The complaint charges Ciancia with violating 1811 U.S.C. 1114 (murder of a federal officer) and 18 U.S.C. 3712 (violence at international airports) . Ciancia is hospitalized and13 under heavy sedation due to gunshot wounds sustained at the scene.14

On November 3, 2013, the Federal Public Defender ( FPD ) filed1516 an application for provisional appointment to represent Ciancia.17 The application contained no statutory or case citations or other

19 that Ciancia could benefit greatly from the appointment of counsel20 at this time, and, based on the charges themselves and news reports21 regarding his employment history, it appears likely that he will22 qualify for the services of the FPDO. (FPD application, 4.) At23

this time, the government opposes the FPD application, as the25 requested appointment would be premature and has no constitutional26 or statutory basis.27 iancia has no Sixth Amendment right to counsel at this stage28 of the proceedings. Massiah v. United States, 377 U.S. 201, 205



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1 (1964) (defendants are entitled to counsel from the time of their2 arraignment ); United States v. Gouveia, 467 U.S. 180, 192 (1984)

(defendants were not constitutionally entitled to appointment of4 counsel prior to arraignment, before any adversary judicial5 proceedings had been initiated against them ); United States v.6

Pace, 833 F.2d 1307, 1312 (9th Cir. 1987) (Sixth Amendment right to8 counsel did not attach upon the filing of the complaint by the FBI,9 the issuance of the warrant of arrest, or [defendants] arrest ).

10 The Sixth Amendment expressly applies to criminal prosecutions,rather than to criminal investigations, and the filing of a federal

12 criminal complaint does not commence a formal prosecution triggering13 the Sixth Amendment right to counsel. Id.; see also United States14

v. Alvarado, 440 F.3d 191, 200 (4th Cir. 2006) (at the filing of a1516 complaint [t]he criminal process is still in the investigative17 stage, and the adverse positions of government and defendant have

8

19 he Criminal Justice Act, 18 U.S.C. 3006A ( CJA or the20 Act ) governs appointment of counsel to represent indigent21 defendants in federal court. The CJA suggests that the right to22 representation pursuant to the Act begins at the initial appearance.2324 18 U.S.C. 3006A(c) ( [a] person for whom counsel is appointed25 shall be represented at every stage of the proceedings from his26 initial appearance before the United States magistrate judge or the27 court . . . . ) (emphasis added) . On that rationale, federal28 district court judges in the Southern District of New York have



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The practical effect of appointing counsel at this time - otherthan prematurely selecting the FPD as Ciancia s legal counselwithout input from Ciancia - would be to prevent the government fromquestioning Ciancia, as he would then be a represented party.Significantly, this would also preclude the government from

67 questioning Ciancia, pursuant to the recognized public-safety8 exception to the Miranda rule, on the possible existence of co-9 conspirators, organizational support for his actions, and other

10 violent plots about which Ciancia could have knowledge. See New11 York v. Quarles, 467 U.S. 649 (1984). Moreover the United States12 Supreme Court has created an investigative framework, notably in13 Nassiah and Miranda, in which the government may question a14

defendant without counsel after an arrest and prior to arraignment1516 in order to obtain information important to the investigation and to17 public safety. The unilateral action by the Court now urged by the

19 waive his constitutional rights and speak to the government about20 the offense prior to arraignment. In most other cases that brief21 window between arrest and arraignment would have already closed by22 the time of the FPD request. Ciancia s injuries, which have2324 prevented him from speaking with anyone and thus have enlarged that25 window, should not alter the investigative framework constructed by26 It has been reported that police officers at the scene of the27 shooting very briefly questioned defendant about the existence ofadditional shooters, but the FBI feels that additional topics need28 to be addressed with defendant if he is willing to talk.



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1 the Supreme Court.2 or these reasons the government respectfully opposes the

application by the FPD for provisional representation at this time.

Dated: November 4 2013 espectfully submitted6 NDRBIROTTE JR.United States Attorney7 ROBERT B. DUGDALE8 ssistant United States AttorneyChief Criminal Division9

10 PATRICK R. FITZGERALD11 ELISSA MILLSAssistant United States Attorneys1213 ttorneys for PlaintiffUNITED STATES OF AMERICA4

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Case 1:98 cr 01023 LAK Document 1356 Filed 10/11/13 Page 1 of 4

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK-------------------------------xUNITED STATES OF AM ERICA,

-against-

USDS SDNYDO C UM E NTELECTRONICALL Y FILEDDOC :____________

[DATE FILED oj t

S 1 98 Crim. 1023 (.LAK)

ANAS Al...LIBY, a/k/a Nasih al Ra ghie, a/k/a Anas al Scbai,Defendant.

xApplication ofDAV ID E. PA TTON , Executive Director, Attorney-in-Chief, Federal Defenders of New York-------------------------------x

M E M O R A N D UM A N D O R D E R

LEWIS A. KAPLAN, 1 /strict Judge.This matter is before the Court on an application by David E. Patton to appoint

an attorney for the defendant.

The defendan t is charged in the superseding ind ictment with, among other offenses,conspiracy to kill United Stales nationals and cons piracy to kill officers and em ployees of the UnitedStates at the U.S. embassies in Nairobi, Kenya, and Da r es Salaam, Tanzania, which were bombed

in 1998 w ith great loss of life and other casualties. He long w as a fugitive.

Mr. Patton is Executive Director and Attorney-in-Chief of Federal Defenders of New York,which provides legal representation in the federal courts in New York City to some indigentdefendants.



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Case 1 :98 cr 01 023 LAK Document 1356 Filed 10/11/13 Page 2 of 4

According to press reports and a statement issued by the Secretary of Defense, thedefendant was apprehended last w eekend in L ibya in operations by U .S. military personnel. At leastone press source has reported that the defendant is being held on a nav al vessel in the M editerranean.

M r. Patton relies on Fed. R. C rim. P. 5(a)(1)(B), w hich. provides that:A person making an arrest outside the United States must take the defendant

without unnecessary delay before a magistrate judge, unless a statute providesotherwise.The United States Attorney s office opposes the application. It contends that the

motion is premature because the Criminal Justice Act, w hich governs the appointment of counselfor indigent defendants in federal courts, does not countenance appointment of counsel prior to adefendants appearance in a United States federal court. Counsel should not be appointed, itargues, unless and until the defendant appears in federal court and supplies appropriate proof ofindigency, which usually is done by financial affidavit. The government further argues that,contrary to M r. Pattons position, the defendant has not been criminally arrested, Rather, he hasbeen detained by the United States Arined Forces, acting under their own legal authorities whichdoes not, in the governmen ts submission, trigger Rule 5.

18 U .S.C. 3006A.Dl 1348,It contends also that this Courts Revised Plan for Furnishing Representation Pursuant tothe OA is to similar effect.

4Dl 1350



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Case 1:98-cr-01023-LAK Document 1356 Filed 10/11/13 Page of 4

IIMr. Patton and the government h ave raised or alluded to, explicitly or otherwise, a

number o f issues, both factual and legal, including among others whether M r. Patton has standingto make the present application, whether the defendant has been arrested within the meaning ofRule 5 , whether the delay in bringing him before the Court has been or may become unnecessary,and the remedy for any such unnecessary delay. Bu t it is unnecessary for present purposes to decidewhether Mr. Patton has standing, and the other questions are premature.

As the government argues, Rule is triggered only by federal criminal arrest. Thegovernment denies that any federal criminal arrest has taken place, and there is no evidence to thecontrary. Thus, there is no proper basis on which the Court could conclude that the obligation toproduce the defendant before it in this criminal case has come into existence. The decision whetherto proceed with a criminal prosecution of this indictment in the first instance at least is anExecutive Branch Rm nction. it remains to he seen w hether such a prosecution will go forward.

Even if it were clear that a federal criminal arrest has occurred, two judges of thisCourt previously have held that the appropriate time for the appointment of counsel is upon thearrival of the defendant in this district and the subm ission of a sufficient financial affidavit or othersatisfactory proof o f indigency. I see no reason to depart from that view. Moreover once the

See Padilla v Runisfeid 352 F.3d 6 9 5 , 702-04 (2d Cir. 2003), rev c i on jurisdictionalgrounds 542 U.S. 426 (2004).

6United States v. Ghailani, 75 1 F. Supp.2d 515, 526 11.66 (S.i)N.Y. 2010).United Stales v. al Fawim az, No. S9 98 C rim. 1023 (LAK ), Dl 1102 (S.D.N.Y. filed May 6,201 ); United States v. Mustafa, No. 04 Crimm 356 (KBF), DI 129 (S.D.N.Y. filed Sept. 13,2013).



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Case 1:98 cr 01023 LAK Document 1356 Filed 10/11/13 Page of

defendant is presented, he is free to seek any appropriate remedy for any alleged violation of Rule5

Finally, the Cou rt is mindful of the fact that Mr. Patton s concerns may include thelegality of the defendant s current detention, assuming that he is not detained pursua nt to an arreston this indictment. But such questions are not properly cognizable under Fed. R. Crim. P. 5 . TheCourt therefore expresses no vi w with respect to the existence or nature of other means of raisingsuch concerns.

IIIMr. Patton s application is denied without prejudice to renewal upon the presentation

of the defendant before this Court and his furnishing of appropriate proof of indigeney.

S o ORDERED.Dated: ctober 11, 2013

Lewis A. K aplanUnited States D istrict Judge



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Case 1 :98 c r 01 023 LAK Document 1102 Filed 05/06 /11 Page 2 of 6

ackgroundOn December 20, 2000, a superseding indictment S 9) was filed againstnum erous ind iv idu als , inc lud ing Khaled Al Fawwaz. Mr. Al Fawwaz had a l readybeen charged in the case in prior ind ictm ents. He is charged in fou r coun ts in S(9):Counts 1,3, and 6 of the indictment. The case involves numerous offensesarising out of alleged participation in a terrorist organization led by defendantUsam a Bin Laden and the bom bings of Uni ted Sta tes Em bassies in Nairobi , Kenyaand Dar es Salaam, Tanzania in August of 1998. We understand that S(9) is thei nd ic tmen t on which Mr. Al F awwaz i s be ing extrad i ted from the Uni ted Kingdo m .Prior to th is ind ic tm ent , the Co urt had d i rec ted c ou nse l for those defendants

before it to confer regarding protective orders and the confidential nature ofcou nse ls c learance appl ica t ions and invest igat ion pr ior to the re lease or review ofcertain documents in the possession of the United States. A protective order hadbeen filed on July 29, 1999 regarding the unauthorized disclosure of nationalsecuri ty informat ion and do cum ents .

Over the cou rse of the past 12 years, Mr. Al F awwaz has been engaged in arequest for political asylum in the United Kingdom, based upon his fear ofpersecution in his native country of Saudi Arabia as a result of his high profileopposi t ion to the Saud i governm ent . Unt i l h is arrest , Mr. Al Fawwaz was the headin London of the Advice and Reform Committee, an organization calling fornon-violent opposition to the Saudi government. In light of the current events inthat area of the world, we can su rm ise his views were and are shared by m any, but,nonetheless, unpopular with the Saudi government.

Mr. AFFa*waz is represented by counlihii gttiOn case itthUnited Kingdom with respect to issues arising under the United NationsConvention on Refugees and the European Convention on Human Rights. Thegovernm ents of both the Uni ted Kingd om and the Uni ted Sta tes have agreed tha t ,should Mr. Al Fawwaz be acqui t ted an d re leased in the Un i ted Sta tes on th is case ,he will be returned to the United Kingdom rather than to Saudi Arabia. He hasalso had counsel challenging his extradition to the United States. The extraditionproceed ings in the Uni ted Kingd om have com e to an end , and M r. Al Fawwaz hasexhausted his rights of appeal in that venue. However, his attorneys continue tochallenge his extradition before the European Court of Human Rights on issuesrela t ing to the possible cond i t ions of co nf inem ent Mr. Al Fawwaz could face in theUnited States, and whether those conditions would be in compliance with the



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standards required under Article 3 of the European Convention on Human Rights.It is likely those proceedings will be com pleted with the next mon ths and that Mr.Al Fawwaz will be extradited to the United States to face his charges before thisCourt at that time.

UNITED STATES DISTRICT COUR TS O U TH ER N D I STR I C T O F N EW Y O R K

LO C A L R U LES R EG A R D I N G A P P O I N TMEN T O F C O U N S ELSection VII.D. of the Revised Plan for Furnishing Representation Pursuantto the Criminal Justice Act 18 U.S.C. 3006A ) allows appointments of attorneyswho are not presently on the Southern District CJA panel for indigent defendants.

That section provides:D APPOINTME NTS IN SPECIAL CIRCUMSTAN CESW henever a judge m akes a written finding, in a proceeding in which counselmust be assigned pu rsuant to this Plan, that there is good cause show n wh ichrenders it in the interests of justice that counsel wh o is not employed b y theFDNY or a member of the CJA Panel be assigned, the district judge ormagistrate judge may appoint that counsel with the consent of the person tobe so represented and the approv al of the Chief Judge of the District. Suchappointment shall constitute a temporary appointment to the CJA Panel forthe purpose of that proceeding only. If the magistrate judge makes such anappointm ent and the ca se is transferred to a district judge, the district judgewill review the matter and either confirm the appointment or assign a newattorney from the CJA Panel.

David Kirby is on the CJA Panel in the District of Vermont but not currently amember of the Southern District Panel.COUNSEL S QUALIFICATION

If the Court seeks references, I sugg est it contact Judge William K. Sessions, III of theDistrict of Vermont, Judge John Gleeson, EDN Y, Chief Judge Carol Amon, ED NY , Judge J.Garvin M urtha, Vermont and/or Judge Peter Ha ll of the Second Circuit. Each of these Judgesknow m e both personally and professionally and could provide the Cou rt with insight into myqualifications.



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Beyond being a member of the State Bars of New York, Vermont andIllinois, I am a member of the Vermont CJA Panel, and an experienced federalpractitioner. I have been an Assistant United States Attorney for about 30 years;10 years in the Eastern Dis tr ic t o f New York , serv ing a t t imes as C hie f o f Genera lCrimes and Chief of Appeals and about 20 years in the District of Vermont,serving either as Chief of the Criminal Division, the United States A ttorney or theFirst Assistant. In both of those offices, I tried numerous federal jury trials(certainly more than 20 jury trials to verdict) and have handled too many federalappeals to count, either directly or through my supervisory role as the Chief ofAppeals (EDNY) or as the dc-facto appeals chief (VT). As my resume (attached)discloses, I attended Northwestern University School of Law, where I was Editor-in-Chief of the Northwestern University Law Review. I then clerked for twofederal judges, Judge Robert Sprecher, United States Court of Appeals for theSeventh Circuit and Justice John Pau l Stevens, United States Supreme Cou rt. I amadmitted in New York S tate and the United States District Courts for the Southernand Eastern Districts of New York.

While serving as an AUSA in both the EDNY and Vermont, I have had asubstantial amount of experience with national security matters (including FISAwiretaps). I was the N ational Security Co ordinator in the U.S. A ttorneys Office inVermont and also handled (or coordinated) all the extradition matters for thatoffice. I carried a Top Secret clearance which I presume could be reinstatedwithout too substantial an investigation. Thus, I have experience with variousissues concerning prosecution of crimes abroad, an d the issues of national securitywhich arise.

At present,Lpractice in Vermont with my own firm, OConnor Kirby,P.C. and in New York as of counsel to Krantz Berm an, LLP , and represent bothindividuals and corporations in both venues. If appointed to represent Mr. AlFaww az, I would utilize the offices at Krantz Berman, 747 Third Avenue, NewYork, NY a s my primary w orkspace, and would anticipate spending the majority ofmy time in New Y ork.

C O U N S E L S R E L A T IO N S HIP W I TH TH E D E F E N D A N TI have been in contact with Mr. Al Fawwaz s attorneys for more than eight

months and have developed a substantial rapport with them. The initial contactcame about through Mr. Al Fawwaz s attorney in the United Kingdom, Wesley



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Case 1 :98 cr 01023 LAK Document 1102 Filed 05/06/11 Page 5 of 6

Gryk , who is representing Mr. Al Faww az with regard to imm igration m atters. Mr.Gryk, about a year ago, began looking for an attorney in the United States torepresent M r. Al Faw wa z. As can be seen from the let ter he has writ ten to theCourt in suppo rt of this application (attached), M r. Gryk is an attorney trained inthe Un ited States now practicing in the U K. H e reached out to friends of his in theUnited States, including an attorney in the United State s Attorney s Office inBo ston, James Farm er. Mr. Farmer, a colleague I have kno wn for many y ears fromour mutual supervisory responsibilities in United State s Attorney s offices,recomm ended that Mr. Gryk contact me.

From our initial contact, Mr. Gryk mad e it clear that Mr. Al Faw waz soug httrue legal representation to meet these charges, not an attorney who wouldsensationalize the case or seek publicity for any cause. This is an individual facingpossible imprisonmen t for life who is anxious to receive thoug htful, careful legalrepresentation, analysis of the issues and solid a dvice.

W hile I have not had access to the discovery in the m atter, I have studiedand learned a great deal about the case, and about the proceedings and co-defendant cases, including Ahm ed K halfan Ghailani s trial and sentencing. I agreewith M r. Gryk s assessment that it will me an a substantial amount to someo ne inM r. Al Faw waz s situation to have counsel who is already familiar with the case,and w ith whom he is com fortable. He is facing the p ossibility of living the rest ofhis life in prison. H e has fough t extradition because the con sequences of appea ringin the Uni ted States are so extreme. W hile I am confident that M r. Al Faw wazwo uld receive effective representation from any SD NY Panel mem ber (a num berof wh om I have kno wn), I do believe that he would be better served by star tingwith counsel that he trusts, who has substantial international criminal lawexperience, who has held high security clearances in the past, and w hose interest inthe case is strictly based on con cern for Mr. Al F aww az.



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ON LUSIONBoth M r. Al Faww azs interests in com petent and zealous representation,and the interests of the C ourt in efficient and effective representati on argue forappointment of counsel who has an established relationship w ith Mr. Al Faww az,

who is already familiar with the case and M r. Fawwazs circumstances to date,wh o wou ld likely face little investigation regarding security clearance, who hassubstantial experience with international federal criminal law issues and w ho isqualified to serve.

Sincerely,C

David V. irby Esq.OConnor Kirby, [email protected]

L Ve

R~LEW IS A. K PL ..



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Case 1 :04 cr 00356 KBF Document 129 Filed 09/13/12 Page 1 of 9

.S. Department of JusticeUnited States A t torneySouthern Dis tr ict o fNew YorkThe Silvio L M ollo BuildingOne Saint ndrewPlazaNew York New York 1 7

September 12, 2012By Electronic M ailThe Hon orable Katherine B. Forrest SDC SONYD O C U M E N TUnited States D istrict Judge LECTRONIC LLY FILEDSouthern D istrict of N ew Y ork O C #:__________________Daniel Patrick Moynihan U.S. Courthouse TE FILEIgEP 3 2 O500 Pearl StreetNew Y ork, New Y ork 10007

Re: United States v . M ustafa Kame M ustafa and i laroon Aswat04 Cr. 356 (KBF)Dear Judge Forrest:

The Go vernment w rites respectfully in response to the letter of Priya Chaudhry, Esq.,dated August 30, 201 2, in which she requests to be appointed as counsel to Haroon Asw at - adefendant in the above-captioned Indictment - pursuant to the Crim inal Justice Act, 18 U.S.C . 3006A ( C JA or Act ). Aswat, who was arrested in the United Kingdom in 2005, ispresently incarcerated there, and a request for his extradition to the U nited States remainspending. This Court should deny M s. Chaudhrys application as premature, as Judge Lewis A.Kaplan- denied - in-Uni ted-States-vKhai id-Al-Fawwa z--98-Cr- .4023- LAK -) ,- when -an-attorneymade a sim ilar application with respect to another defendant whose extradition from the U nitedKingdom is pending. A copy of Judge Kaplans memorandum endorsement denying thatapplication is attached to this letter as Exhibit A.

At this time, the Governm ent opposes M s. Chaudhrys application to be appointed asC JA counsel on p rocedural grounds, primarily because it is premature. Initially, the Governm entdisagrees with Ms. C haudhrys assertion that the Act, at Section 3006A (a)(1)(A), authorizes herappointmen t at this stage because Asw at already has been indicted. See Letter of Priya Chaudhryto The Hono rable Katherine B. Forrest, Aug. 30, 2012, at 2. Section 3006A(a)(1) m erely setsforth the categories of financially-eligible individuals who are entitled to a C JA ap pointment;that section does not, however, provide for when that appo intment may take place.

Rather, the Act contemplates that a CJA appointm ent not occur before a defendantappears in a United States federal court. First, Section 3006A(b) provides that the C JAappointmen t should be made by the judge when a person entitled to representation appearswithout counsel and the judge advises that individual that he or she has the right to be



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Case 1 :04 cr 00356 KBF Document 129 Filed 09/13/12 Page 2 of 9

Hon. Katherine B. ForrestSeptember 12, 2012Page 2represented by cou nsel and that counsel will be appointed to represent him if [the defendan t] isfinancially unable to obtain counsel. The Act thus plainly contemplates the defendantsappearance befo re a United States District Judge or M agistrate Judge before a CJA appointm entcan occur.

Sect ion 3006 A(c) also makes clear that a CJA appointment commences upon adefendants initial appearance. That section of the Act pro vides that a CJA representation shallcover every stage of the proceedings from [the defendants] initial appearance before theUnited States mag istrate judge or the court through appeal, including ancillary mattersappropriate to the proceedings. 18 U.S.C. 3006 A(c) (emphasis added); cf Doherty V UnitedStates 404 U.S. 28, 33 (197 1) (noting that the CiA provides for representation fromarraignment ).Consistent with Section 3006A (c) of the CJA, this Cou rts local plan governing C iAappointm ents provides for the appointment to occur at a defendants appearance before thepresiding District Judge or M agistrate Judge. See United States D istrict Court, Southern Districtof New Y ork, Revised Plan for Furnishing Represen tation Pursuant to the CJA ( CJA Plan ),Section VII(B ) (requiring the presiding magistrate judge or district judge to appo int counsel[u]pon the appearance of the defendant ); but see id. Section VII(A) (providing that counselshould be provided pu rsuant to the CJA Plan as soon as feasible after [eligible defendants] aretaken into custody, wh en they appea r before a com mitting magistrate judge or district judge,when they are formally charged, or when they o therwise becom e entitled to counsel under theCriminal Justice Act, whichev er occurs earliest ).

Moreover, commencing representation under the CJA upon initial appearance makesgondsen&eThe_expenditurcoLC1Am oney for the representation of a defendant who has notyet been extradited to the United States, and whose p resence in this Court is thus not assured, ispremature. Indeed, in the case of Asw ats pending extradition, there is ongoing litigation beforethe European Court of H uman Rights concerning com petency issues, and we cannot predict withany certainty when a decision will be rendered.W e also note that, in the ordinary course, the CJA P lan implicitly does n ot allow anattorney to select his or her client, The C iA Plan explicitly does no t countenance a CJAappointm ent of a particular attorney selected by a defendan t. See e.g. Section VII(C)(2) ( Noperson shall have the right to select the coun sel appointed to provide representation pursuan t tothis Plan. ). Logically, an attorney also should n ot be able to select his or her client of choice.

W hile the Go vernm ent anticipates that Asw at will be eligible for CJA fund ing, we also notethat the Act requires that the presiding District Judge or M agistrate Judge make an appropriateinquiry that the person is financially unable to obtain counsel, 18 U.S.C. 3006A(b ), which hasnot occurred in this case.



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Case 1:04 cr 00356 KBF Document 129 Filed 09 13 12 Page 3 of 9

Hon. K atherine B . ForrestSeptember 12, 2012Page 3Lastly, Judge K aplan has denied a similar application for a pre-extradition CJA

appointment, which was made under indistinguishable circumstances. On April 30, 2011, anattorney sought CJA appointment by Judge K aplan to represent Khalid Al Faww az ("Fawwaz") ,wh o is charged in United States v. KhalidAl Faww az 98 Cr. 1023 (LA K), in many counts forhis alleged role in the bom bings of the United States Emb assies in Kenya and Tanzania inAug ust 1998. Faw waz, l ike Aswat, has been arrested in the U nited K ingdom, w here he remainsincarcerated, and h is extradition to the United States also is pending before the Europ ean Co urtof Hum an Rights. In seeking appointment prior to Faww azs extradit ion, the attorney contendedthat "[p}romp t appointment of coun sel in this case will help [Faww az] prepare for trial on thesecharges in the mo st expeditious mann er, address pre-trial issues efficiently, and w ill allow him toprepare a m ore thorough d efense ." Exhibi t A a t I . On M ay 5 2011, Judge Kaplan denied thatapplication "without prejud ice to renewal up on the defend ants arrival in this district andsubmission of a sufficient financial affidavit." Id. at 6.Accordingly, the Government opposes Ms. Chaudhrys application for appointment torepresent Asw at under the C riminal Justice Act p rior to his appearance in this District.

Respectfully submitted,PREET BH ARARAUnited States Attorney

By: _____Is _____________________John P. Cronan / Edw ard Y. KimAssistant United States Attorneys(212) 637-2779 / 2401cc: riya Chaudhry, Esq.Enclosure

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Case 1Ca se 1:98 cr 01 023 LAK Docume nt 1102 Filed 05/06/11 Page 1 of 6

isjM O E N D O R S E DO C onnor and K irby, P .C.

Attorneys at Lawl74 Battery St.3dfloorBurlington, VT 05401

DAVID V. KIRBYAdrntt.d in MY, Vr and II .BARBARA E. O CONNORMmitl.d in NY, VT, CT and CA

Hon. Lewis A. Kap lanUnited States D istrict JudgeDaniel Patrick M oynihanUnited States Courthouse5 Pearl St.New York, NY 10007-1312

(802) 883.0112802) 885.580 (fac1ite) L.

April 30,2011 . ....

Re: United States v .JChalidA Faw waz Docke t No. S 9) 98-Cr-1023-15Dear Judge K ap lan ,

I write on be half of Kha l id l Fawwaz to request that you appoint theundersigned pursuant to the C riminal Justice A ct to represent Mr. Al Fa ww az. AsYour Honor is fully aware Mr. Al Fawwaz is charged in the above-notedindictment in the Embassy Bombings Case. He anticipates extradition frnthUnited Kingdom to the United States within the next few months to face thesecharges. Prom pt appointment of counsel in this case w ill help him prepare for trialon these charges in the most expeditious manner address pre-trial issuesefficiently, and will allow him to prepare a m ore thoughtful defense) H e asks thatthis Court appoint the undersigned for the reasons discussed in this letter.

I have been advised by Mr. Al Faww az s European counsel that Mr. Al Faw waz isindigent. A financial affidav it supporting this request w ill be filed immed iately upon M r. AlFaww az s extradition. Should the Court wish the affidav it to be tiled sooner, I will arrange forthe filing.



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ackgroundOn D ecember 20, 2000, a superseding indictment S(9) was filed againstnumerous individuals, including Khaled A l Fawwaz. M r. Al F awwaz had already

been charged in the case in prior indictments. H e is charged in four counts in S(9):Counts 1,3, and 6 of the indictment. The case involves numerous offensesarising out of alleged participation in a terrorist organization led by defendantUsama B in Laden and the bom bings of United States Embassies in Nairobi, Kenyaand Dar es Salaam, Tanzania in A ugust of 1998 . W e understand that S(9) is theindictment on which M r. Al Fawwaz is being extradited from the United Kingdom .Prior to this indictment, the Co urt had directed counsel for those defendantsbefore it to confer regarding protective orders and the confidential nature ofcounsels clearance applications and inv estigation prior to the release or review ofcertain documents in the po ssession o f the U nited States. A protective o rder had

been filed on July 29 1999 regarding the unauthorized disclosure of nationalsecurity information and documents.Over the course of the past 12 years, Mr. A l Fawwaz has been engaged in arequest for political asylum in the United Kingdom based upon his fear ofpersecution in his native country o f Saudi A rabia as a result of his high pro fileopposition to the Saudi government. Until his arrest, M r. Al F awwaz was the h eadin Lo ndon of the A dvice and Reform Com mittee, an organization calling fornon-violent oppo sition to the Saudi gov ernment. In light of the current events inthat area of the world, we can surmise his views were and are shared by many , but,nonetheless, unpopular with the Saudi government.M r. Al Faww az is represented by c oun-vel in his immigration case in theUnited Kingdom with respect to issues arising under the United NationsCo nvention on Refugees and the European Conv ention on H uman Rights. Thegovernments of both the U nited K ingdom and the United States have agreed that,should Mr. Al Fawwaz be acquitted and released in the United States on this case,he will be returned to the United K ingdom rather than to Saudi Arabia. He hasalso had counsel challenging his extradition to the Un ited States. The ex traditionproceedings in the U nited K ingdom have come to an end, and M r. Al Faww az hasexhausted his rights of appeal in that venue. Ho wever, his attorneys continue tochallenge his extradition before the E uropean C ourt of H uman Righ ts on issues

relating to the possible conditions of confinement Mr. Al F awwaz could face in theUnited States and whether those conditions would be in compliance with the



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s tandards required under A rt icle 3 of the European C onvention on Hu ma n Rights .I t i s l ikely those proceedings w i l l be com pleted with the next m onths and that M r.Al Faw waz w i l l be extradited to the United States to face h is charges before th isCourt at tha t time.

U N I T E D S T A T E S D IS T R I C T C O U R TS O U T H E R N D I S TR I C T O F N E W Y O R KL O C A L R U L E S R E G A R D IN G A P P O IN T M E N T O F C O U N S E LSect ion VII .D. of the Revised Plan for Furn ishing R epresentat ion Pursuantto the Criminal Just ice Act (18 U.S.C. 3006A ) al lows appointments of attorneyswh o are not present ly on the Southern District CJA panel for indigent defendants .That section provides:D . A P P O I N T M E N T S I N S P E C I A L C I R C U M S T A N C E SWhen ever a judge m akes a writ ten f inding, in a proceeding in which counselm ust be ass igned pu rsuant to this Plan, that there is good cause shown wh ichrenders i t in the interests of just ice that counsel w ho is not em ployed by theFD N Y o r a m e mb e r o f t he CJ A Pa ne l be a s s ig ne d , t he d i st r ic t judg e o rm agistrate judge m ay appo int that counsel with the consent of the person tobe so represented an d the app roval of the Ch ief Judge of the District . Suchappointm ent shal l const i tute a temporary ap pointmen t to the CJA Pan el forthe purpose of that proceeding only. I f the m agistrate judge m akes such anappointm ent and the case is transferred to a dis trict judge, the dis trict judgewill review the m atter and e ither confirm the appointment or a ss ign a newattorney from the CJA Panel .

David Kirby i s on the CJA Panel in the Distr ic t o f Verm ont , but not current ly amember of the Southern District Panel.C O U N S E L S Q U A L I F i C A T I O N 9

If the Cour t seeks references, I suggest it contact Judg e William K. Sessions, Ill of theDistrict of Vermon t, Judge John Gleeson, EDNY, Chief Judge Carol Am on, EDNY, Judge J.Garvin Murtha, Verm ont and/or Judge Peter Hall of the Second Circuit. Each of these Judgesknow m e both personally and professionally and could provide the Court w ith insight into myqualifications.



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Beyond being a member of the State Bars of New York, Vermont andIllinois, I am a mem ber of the Verm ont CiA Panel, and an experienced federalpractitioner. I have been an Assistant United States Attorney for about 3 0 y ears;10 years in the Eastern Distr ic t of New York, serving at t imes as C hief of G eneralCrimes and Chief of Appeals and about 20 years in the District of Vermont,serving either as Chief of the Criminal D ivision, the United States Attorney or theFirst Assistant. In both of those offices I tried numerous federal jury trials(certainly more than 2 0 jury trials to verdict) and have handled too m any federalappeals to count, either directly or through my supervisory role as the Chief ofAppeals (EDN Y) or as the de-facto appeals chief (VT). As my resume (attached)discloses I attended Northwestern University School of Law , where I w as Editor-in-Chief of the Northwestern University Law Review. I then clerked for twofederal judges, Judge Robert Sprecher, United States Court of Appeals for theSeventh Circuit and Justice John Paul Stevens, United States Supreme C ourt. I amadmitted in New York S tate and the United States District Courts for the Southernand Eastern Districts of New York.

W hile serving as an AUS A in both the ED NY and Vermont, I have had asubstantial amount of experience with national security m atters (including FISAwiretaps). I was the National Security Coordinator in the U.S. Attorneys Office inVermont and also handled or coordinated) all the extradition matters for thatoffice. I carried a Top Secret clearance which I presume could be reinstatedwithout too substantial an investigation. T hus, I have experience w ith v ariousissues concerning prosecution of crimes abroad, and the issues of national securityWhich arise.At present, I practice in Vermont w ith my own firm, O Connor Kirby,P.C. and in New Y ork as of counsel to Krantz Berman, LLP, and represent bothindividuals and corporations in both venues. If appointed to represent Mr. AlFaw waz, I wou ld utilize the offices at Krantz Berman, 747 Third Avenue, NewYork, NY as my primary workspace, and would anticipate spending the majority ofmy time in New Y ork.

C O U N S E L S R E L A T IO N S H IP W IT H T H E D E F E N D A N TI have been in contact with M r. Al Faw wazs attorneys for more than eightmonths and have developed a substantial rapport with them. The initial contact

came about through M r. Al Faww azs attorney in the United Kingdom, Wesley



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Giyk, who is represent ing M r. Al Faw waz w ith regard to imm igrat ion m atters . M r.G ryk, about a year ago , began looking for an a t torney in the U ni ted Sta tes torepresent M r . Al Faw w az . As can be seen from the l e t ter he has w r i t ten to theCourt in support of this appl icat ion (attached) , Mr. G ryk is an attorney trained inthe United States now p ract ic ing in the UK. H e reached o ut to friends of his in theUnited Sta tes , inc luding an a t torney in th e Un i ted Sta te s A t torneys Office inBoston, James Farmer. M r. Farmer, a col league I have known for man y years fromour m utua l supervi sory resp ons ibi l it i e s in Uni ted Sta te s At torneys o ff ices ,recommen ded that Mr. Gryk contact me.

From our initial contact , M r. Gryk m ade i t c lear that Mr. A l Faww az soughtt r u e le g a l r e p r e s e n t a ti o n t o m e e t t h e s e c h a r g e s, n o t a n a t t o r n e y w h o w o u l dsensation alize the case or seek p ublicity for any cause. This is an individ ual facingpossible imp risonm ent for life wh o is anxious to receive though tful, careful legalrepresentation, analysis of the issues and solid advice.W hile I have not had access to the d iscovery in the ma tter , I have s tudieda n d l e a r n e d a g r e a t d e a l a b o u t t h e c a s e , a n d a b o u t t h e p r o c e e d in g s a n d c o -defendant cases , inc luding A hm ed K halfan Gh ai lanis trial and sentencing. I agreewith M r. Gryks assessm ent that i t will mean a substantia l amount to som eone inM r. Al Faw wazs s i tuation to have counsel wh o is a lready famil iar with the case ,and w ith who m h e is com fortable. He is facing the possibility of living the rest ofhis l i fe in p rison. He has fought extradit ion because the consequences of appearingin the Uni ted Sta tes are so extreme . Wh i le I am conf ident that Mr . Al Faw wa zwould receive effect ive representat ion from a ny SDN Y Pa nel mem ber (a numberof whom have kn ow n) , I do be li eve that he would be be t ter served by s tar tingw i th c o u n s e l t h a t h e t r u s t s , w h o h a s s u b s ta n t i a l in t e r n a t i o n a l c r im i n a l l a wexperience, who h as held high security c learances in the past , and w hose interest inthe case is s trictly based on concern for M r. Al Faw waz .



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O N L U S I O NBoth M r. Al Faww az s interests in com petent and zealous representation,and the interests of the Co urt in efficient and effective representation argue or

appointment of counsel who has an established relationship with Mr. Al Fawwaz,who is already fam iliar with the case and Mr. Faww az s circumstances to date,who w ould likely face little investigation regarding security clearance, w ho hassubstantial experience with international federal criminal law issues and w ho isqualified to serve.

Sincerely,

David V. irby Esq.OConnor Kirby, P.C. /[email protected]

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Documents

DOJopposition.pdf