Almerfedi v. Obama , 904 F. Supp. 2d 1 ( 2012 )

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SECRE'f ;';' Pl8F8R~i
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Filed with Classified
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Information Security Ol'liccr
HUSSAfN SALEM MOHAMMAD ) CJSO 6. ~l~r~..J>~o~
ALMERFEDI, )
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Date \C' /J.ldao ~~
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Petitioner, )
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v. ) Civil Action No. 05-1645 (PLF)
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BRACK OBAMA, )
President of the United States, et ~. )
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Respondents, )
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CLASSIFIED OPfNION AND ORDER
This matter is before the Court on the motion of petitioner Hussain Salem
Mohammad Almerfedi, for reliefunder Rule 60(b) of the Federal Rules of Civil Procedure.
Petitioner seeks relief from the mandate and judgment of the court of appeals instructing this
Court to deny the petition for a writ of habeas corpus. Petitioner asks the Court to reopen these
proceedings for further discovery and, if appropriate upon the completion of discovery,
additional motions and an evidentiary hearing. The government has flied an opposition to
petitioner's motion, and petitioner has filed a reply. The Court heard oral argument on October
24,2012.
I. BACKGROUND
Petitioner filed his habeas corpus petition on August 16, 2005. This Court held a
three-day merits hearing on March 3, 4, and 5, 2010 and granted the petition for a writ of habeas
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corpus by Opinion and Order of July 8, 20 I 0. See ALrnerfecli v. Obama, 725 F. Supp. 2d 18(D.D.C. 2010). The government appealed, and on June 10,2011 the court of appeals reversed
and remanded with instructions to deny the petition . .S~e.. Almerf~di v. Obama, 654 F.3d I (D.C.
Cir. 2011 ). Petitioner then filed a petition for a writ of ce1iiorari in the United States Supreme
Court, which denied the petition on JW1e II, 2012. See Almerfedi v. Obama, 132 S. Ct. 2739(20 12).
Petitioner seeks rei ief from judgment on the basis of documents produced to his
counsel after the conclusion of the merits hearing on five separate occasions, from March l 0,
20 II through December 4, 2011. Petitioner argues that the documents produced were at all times
within the government's possession and that the exculpatory material included within these
documents shows that the government's key witness in support of petitioner's continued
detention had been severely mistreated at Guantanamo, casting serious doubt on the reliability of
his statements. Petitioner's Motion for Relief at 3. Other documents produced by the
government characterize this key witness
at 3-4. In addition, petitioner points to another document that has
recently become public, a 2009 report by the Inspector General of the Department of Defense
concerning the use of mind-altering drugs on some Guantanamo detainees. !d. at 5.
II. DISCUSSION
Rule 60(b) ofthe Federal Rules ofCivil Procedure provides that a court may
rei ieve a party from a final judgment or order for a variety of reasons, two of which are relevant
here. Rule 60(b )(2) provides for relief based on "newly discovered evidence that, with
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reasonable diligence, could not have been discovered in time to move for a new trial under Rule
59(b)." FED. R. CIV. P. 60(b)(2). Rule 60(b)(3) provides for relief based on "fraud (whether
previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party."
FED. R. Clv. P. 60(b)(3). Petitioner does not allege fraud or misrepresentation, but he does allege
misconduct on the part of the government. The Court concludes that peti.tioner is not entitled to
relief on either theory in the circumstances presented here.
A. Rule 60(b)(2)
In order to receive relief from a final judgment or order under Rule 60(b)(2), a
moving party must demonstrate that ( 1) the newly discovered evidence is of facts that existed at
the time of the tria! or merits proceeding; (2) the party seeking relief was "justifiably ignorant of
the evidence despite due diligence"; (3) the evidence is admissible and is "of such importance
that it probably would have changed the outcome"; and (4) the evidence is not merely cumulative
or impeaching. DuckwQtj:~lJniteQ__StCIJ~~, 808 F. Supp. 2d 210,216 (D.D.C. 2011). Se~also
Hope 7 Monroe Street Ltd. Partnership v. Riasco L.L.C., 473 B.R. 1, 7 (D.D.C. 2012 ); Epps v.
Howes, 573 F. Supp. 2d 180, 185 (D.D.C. 2008); ~ar:mdy v, f:rpe Elektromedizin GMBH,
99 F. Supp. 2d 3 7, 44 (D.O. C. 2000). The Court will assume for purposes of analysis and
decision that petitioner has met the first, second, and fourth elements of this test. It must
conclude, however, that the exculpatory evidence produced by the government to petitioner after
the hearing concluded (copies of which now have been provided to the Court) would not satisfy
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the third element -that is, the evidence is not of such an importance that it probably would have
changed the outcome of the proceedings. Rule 60(b)(2) therefore can provide no relief to
petitioner.
Petitioner argues that the five sets of disclosures contain result-altering
exculpatoty information concerning the primary witness against him at his merits hearing,
Humoud al-Jadani, generally referred to as ISN-230. Petitioner asserts that these documents
thoroughly undermine the credibility and reliability of ISN-230 because he was severely abused
and mistreated at Guantanamo and is aracterized by the government
titioner says that it ''is highly likely, if not a certainty, that the late-
produced evidence concerning ISN-230 would have made it impossible for any court to rely on
his statements .... " Petitioner's Reply at 2. The problem with this argument is that, without
even knowing about this exculpatory evidence that further erodes ISN-230's credibility, this
Court did not rely on ISN-230's statements because it found him incredible and wholly
unreliable. As for the court of appeals, ISN-230's statements were not at all material to the
rationale underlying that court's decision to reverse this Court and order petitioner detained.
Thus, even accepting the argument that the proffered evidence is exculpatory and undermines the
credibility and reliability of this witness, it cannot be said that the evidence "probably would
have changed the outcome" either in this Court or in the court of appeals. J)uckworth__y,JJnited
States, 808 F. Supp. 2d at 216.
Despite petitioner's arguments to the contra1y, ~~~Petitioner's Reply at 3-4, a
review of the court of appeals' June 10, 2011 opinions makes clear that the appellate court did
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not view any statements of ISN-230 as necessary to its decision. Thus, whether he is a
demonstrated liar, was tortured, or was treated with mind-altering medications would not have
changed the outcome. Judge Silberman's opinion, for himself and Judge Kavanaugh, makes that
abundantly clear. The court did not rely on the testimony of ISN-230 but rather on "three facts"
-- independent ofiSN-230's statements- that it concluded "when considered together" were
adequate to carry the government's burden of proof by a preponderance of the evidence.
Almerfedi v. Obama, 654 F.3d at 6. 1 Judge Silbetman's discussion in the last two substantive
paragraphs of his opinion is dictum and played no part in the court's decision to reverse and
remand with instructions to deny the petition for a writ of habeas corpus: the opinion clearly
states that the three facts discussed, "combined with Almerfedi's incredible explanations ...
satisfy[] the government's burden without regard to consideration of al-Jadani 's statements."
f\,.lmerfediv. Obama, 654 F.3d at 7. Petitioner's parsing of the last two sentences of the opinion
is too thin a reed on which to reach any other conclusion. And his speculation that the court of
appeals viewed the evidence on which it relied "through the lens" ofiSN-230's statements
conflicts with the court's own description of its reasoning.
The three key facts on which the court of appeals relied were ( 1) petitioner's
admitted two-and-a-half-month stay at Jama'at Tablighi, "an Islamic missionary organization that
is a Terrorist Support Entity 'closely aligned' with al-Qaeda"; (2) petitioner's travel route,
"which is quite at odds with his professed desire to travel to Europe (and brought him closer to
the Afghan border where al-Quaeda was fighting)"; and (3) petitioner's possession of at least
$2,000 of unexplained cash which he had on his person when captured, "notwithstanding his
claim to have given that much to Ali (which was all he brought from Yemen).'' Almerfedi v.
Obama, 654 F.3d at 6 (quoting in part Almerfedi v. Obama, 725 F. Supp. 2d at 29). Both the
majority and Judge Rogers in her concuning opinion also referenced evidence concerning the
existence of Bin Laden's guest houses in Tehran and the use of hotels in Mas had as waystations
for fighters traveling to or from Afghanistan. See id. at 2-3; id. at 8 (Rogers, J., concurring).
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The opinion of Judge Rogers, concurring in part and concurring in the judgment,
confitms and underscores this conclusion. She agreed with the majority's detetmination that
there was sufficient credible evidence independent of ISN-2JO's statements for the government
to satisfy its burden of proof and to support the court's judgment to reverse and remand . .S~~
A!m~Ifedi v. Obarn~, 654 F.Jd at 8-9 (Rogers, J., concurring). "Viewed together," she wrote,
"this evidence supports a reasonable inference that Almerfedi was an al-Qaeda facilitator by the
time of his capture in early 2002." ld. at 8. But she rejected "the majority's analysis of certain
recorded statements by another Guantanamo detainee, Humoud al-Jadani," see id. at 9,
concluding that this Court's evaluation of those statements constituted findings of fact that were
"plausible in light of the record" and thus could not be clearly erroneous. Id. Judge Rogers'
concurring opinion thus confirms that ISN-2JO's statements were not material to the outcome of
the appeal. Petitioner therefore cannot show that the exculpatory evidence concerning ISN-2JO's
credibility is "of such importance that it probably would have changed the outcome." Duckworth
v. United States, 808 F. Supp. 2d at 216. 2
As for the Department of Defense OIG Report respecting mind-altering drugs
administered to some detainees, the government acknowledges that this is exculpatory evidence.
Therefore, to the extent such evidence exists with respect to ISN-230 it has been provided to
petitioner's counsel. For the reasons just discussed, however, if such evidence further
undermines ISN-230's credibility, it would not change the outcome of these proceedings. The
government also represents that the administration of any mind-altering drugs to petitioner would
have been entered on his medical records, and petitioner's entire medical file was timely
produced.
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SECREl' // ~808 F. Supp. 2d at 216; Canales v. A.H.R.E.,
Inc., 254 F.R.D. l, 12 (D.D.C. 2008). In this case, petitioner does not allege fraud or
misrepresentation but misconduct. It is established that failure to disclose materials requested in
discovery may constitute misconduct within the meaning of Rule 60(b)(3). Sum_rner~y. Howard
!Jniy~r~_ty, 374 F.3d !188, !193 (D.C. Cir. 2004) (citing And~I.~Q.!L\'~()_vac;_,_{nc., 862 F.2d
910, 923 (I st Cir. 1988)). And proof of "nefarious intent or purpose" is not required to show
misconduct. t..nderson v. C!YQ-YE.~, 862 F.2d at 923. As the D.C. Circuit has made plain,
however, misconduct alone is not sufftcient to justify setting aside a final judgment or order; the
victim of the misconduct must also demonstrate actual prejudice. Summers v. Howard
.University, 374 F.3d at 1193. More specifically, once misconduct is shown by clear and
convincing evidence, the moving party must also show that the misconduct "substantially ...
interfered with the aggrieved party's ability fully and fairly to prepare for and proceed to trial."
A.l1.ci~rson_v. C!'YQ!::aC, l11.Q_,_, 862 F.2d at 924 (emphasis in original); see id. at 923 (moving party
must show that misconduct "foreclosed full and fair preparation or presentation of its case"). 3
Unlike the requirement of Rule 60(b)(2), the misconduct that must be shown
under Rule 60(b)(3) need not be "result-altering" in order to merit relief. Anderson v. Cryovac,
Jnc., 862 F.2d at 924.
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While the habeas corpus petition in this case was filed in 2005, nothing much
happened until 2009 because of litigation in the court of appeals and the Supreme Court. In
August of 2009, this Court granted the government's motion to stay the case in its entirety, which
stay included a stay of all discovery. In November 2009, with discovery motions still pending,
petitioner asked the Cowi to lift the stay and for an expedited briefing schedule and an expedited
merits hearing. The Court granted petitioner's request to lift the stay at a status conference on
December 15, 2009. The government continued to urge the Court not to expedite the hearing, in
order to permit it to complete discovery before the merits phase of the litigation began.
Petitioner urged speed and expedition. The Court announced a schedule requiring expedited
briefing on motions and an expedited hearing to begin on March 3, 201 0; the parties jointly
proposed a specific schedule consistent with the Court's directive . .See Joint Proposed Hearing
Order (Dec. 24, 2009) [Dkt. No. !98]. The government subsequently made a new request for
delay, in light of a January 20 l 0 ruling that imposed additional discovery obligations, and
petitioner resisted this request. See Petitioner's Opposition at 1-2 (Feb. 16, 201 0) [Dkt. No. 214]
("Petitioner urgently requests the Court not to delay the merits hearing .... If the government
finds new exculpat01y evidence after the merits hearing ... the new evidence can be submitted to
the Court in a supplemental filing."). Recognizing that these decisions by the Court did not
permit the government to complete review of potentially relevant documents and to provide
discovery in a timely fashion, the Court entered an Order on March 1, 20 I 0, requiring the
government to continue to search its records and provide discovery until the conclusion of the
merits hearing. See Order (Mar. I, 20 I0) [Dkt. No. 228]. It further provided in that Order that
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"[i]f any exculpatory information is discovered at any time, however, it must be disclosed to
petitioner since respondents have a continuing obligation to disclose such information." ld.
The merits hearing began on March 3, 2010 and concluded on March 5, 2010.
The government complied with the Court's March 1, 2010 Order by providing discovery on a
rolling basis through the end of the hearing and even beyond (since some documents had been
discovered but not yet cleared for disclosure by March 5, 20 J 0). To the extent there have been
five subsequent disclosures of exculpatory material, those disclosures were properly made
pursuant to the last sentence of this Court's March I, 2010 Order. Thus, the procedural history
of this case makes plain that there was no misconduct on the part of the government- let alone
clear and convincing evidence of misconduct- but rather compliance with the Court's orders in
view of the expedition requested by petitioner.
As for actual prejudice, petitioner argues (I) that ISN-230's credibility was
material to the court of appeals' decision, and (2) that "[h]ad the Government searched for and
produced exculpatory information with reasonable due diligence, it might well have found and
produced additional exculpatory evidence relating not just to ISN-230's credibility, but also to
other issues in the case." Petitioner's Reply at 10. The Court already has rejected the first
argument, see supra at 4-6, and while the test under Rule 60(b)(3) does not require a probable
change in the outcome of proceedings, there can be no prejudice where the new information
could not have affected the legal basis for the decision being challenged. See Hope 7 Monroe
Street Ltd. Partners..hltLv. Riasco L.L.C., 437 B.R. at J l. As for petitioner's second argument, it
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is not only based on pure speculation but falls far short of a demonstration of prejudice by clear
and convincing evidence.
For the foregoing reasons, Petitioner's Motion for Relief under Rule 60(b) of the
Federal Rules of Civil Procedure is hereby DENIED.
SO ORDERED.
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u-~~·
PAUL L. FRlEDMAN
DATE: /0 I r). ~I /tJ... United States District Judge
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