United States v. Darui ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
UNITED STATES OF AMERICA )
)
v. )
) Criminal No. 07-149 (RCL)
FARZAD DARUI, ) v §
> F!LE
Defendant. )
) MAY ~;' zone
ER WH€TT\NGTON.CLEBK
WD\STR\CTCUM
MEMORANDUM OPINION
The govemment’s prosecution of defendant in May 2008 resulted in a hung jury. Before
the Court are four motions by defendant Motion [l 07] for a Judgment of Acquittal; Motion
[114] to Dismiss Superseding indictment as Violative of the Double Jeopardy Clause; Motion
[128] to Dismiss the Indictment or Preclude at Retrial the Testimony of the Government’s
Principal Witness Who Obstructed Justice, Made False Statements, and Committed Perjury; and
Motion [142] to Dismiss Indictment with Prejudice and for Sanction of Government for
Manipulating Evidence, Submitting a False Affldavit, and Using False Testimony to Support
Admission of a Material Exhibit. On February 26, 2009, the Court heard oral argument on
Motion [128]. As described below, the Court finds no grounds for judgment of acquittal,
dismissal of the indictment, or sanction of the govemment, and all four motions shall be denied.
BACKGROUND
Defendant was prosecuted and tried for five counts of mail fraud, two counts of interstate
transportation of stolen property, one count of money laundering, and one count of theft. The
charges were all related to defendant’s alleged misappropriation of funds from the Islamic Center
of Washington while he served as the Center’s business manager. The government’s main
witness at trial was Dr. Abdullah Khouj, the Center’s director and religious leader. After eleven
trial days, jury deliberations began on the aftemoon of Wednesday, May 2l, 2008. On that
Friday aftemoon, the Court determined that the jury was hung and declared a mistrial.
DISCUSSION
A. Motion [107] for a Judgment of Acquittal
There are two parts to defendant’s Motion [107]. Thc first part, which seeks acquittal on
the mail fraud charges (Counts One through Five), can be disposed of quickly. Defendant
contends that "[f] or the reasons asserted orally at trial, . . . there was no adequate proof of mail
fraud because the mails were not used in furtherance of the alleged scheme to defraud." (Def.’s
Mot. [107] at l.) As defendant seems to recognize, during trial defendant made two oral motions
for dismissal based on insufficiency of the evidence, one after the government’s case and one
after all evidence had been submitted. The Court denied both motions. Defendant does not
explain how this motion, also claiming insufficiency of the evidence, differs from the ones made
during trial, nor why it should be granted while the trial motions were denied. Accordingly, the
Court cannot grant defendant’s motion for acquittal based on insufficiency of the evidence.
The second part of defendant’s Motion [107] is more substantial. Defendant claims that
the recent Supreme Court decision Um`ted States v. Santos, 128 S. Ct. 2020 (June 2, 2008),
"precludes prosecution of money laundering when there is no evidence the funds are profits."
(Def.’s Mot. [107] at 2.) The federal money laundering statute under which defendant is
charged, 18 U.S.C. § 1957, targets
[w]hoever, in any of the circumstances set forth in subsection (d), knowingly
engages or attempts to engage in a monetary transaction in criminally derived
property of a value greater than $10,000 and is derived from specified unlawful
activity. . . ."
18 U.S.C. § l957(a). "‘Criminally derived property’ means any property constituting, or derived
from, proceeds obtained from a criminal offense." 18 U.S.C. § 1957(f)(2) (emphasis added).
Defendant contends that Santos defines "proceeds" as "profits" rather than gross receipts.
Therefore, defendant continues, because the government has not presented evidence that
defendant’s financial transactions involved "profits" from his mail fraud-as opposed to mere
reimbursements_Santos mandates that the money laundering count of the superseding
indictment (Count Eight) be dismissed. The Court does not reach the same conclusion as to
Santos’s holding.
ln Santos, Justice Scalia wrote for a four-Justice plurality that the term "proceeds" in a
related federal money laundering statute, 18 U.S.C. § 195 6(a)(l), could be fairly interpreted as
either "profits" or "gross receipts."‘ Therefore, Justice Scalia continued, the "rule of lenity,"
which requires that ambiguous criminal laws be interpreted with lenience toward the defendant,
mandates that "proceeds" be interpreted as "profits." Santos, 128 S. Ct. at 2025 (Scalia, J.). The
fifth vote in favor of the "profits" interpretation came from Justice Stevens, writing separately
and concurring with the judgment. But Justice Stevens suggested that the tenn could be defined
‘Although defendant is not charged under § 1956, but rather under § 195 7, the term
"proceeds" is undefined in either statute. Defendant contends that Santos is thus relevant to
defendant’s case. The government does not contest defendant’s position, nor does the Court.
3
as "profits" in the context of some money laundering operations but as "gross receipts" in others.
Id. at 2032 (Stevens, J., concurring) ("[T]his Court need not pick a single definition of ‘proceeds’
applicable to every unlawful activity, no matter how incongruous some applications may be.").
For example, Justice Stevens wrote, "the legislative history . . . makes it clear that Congress
intended the term ‘proceeds’ to include gross revenues from the sale of contraband and the
operation of organized crime syndicates involving such sales. But that history sheds no light on
how to identify the proceeds of many other types of specified unlawful activities." Id. (footnote
omitted).z Because Justice Stevens concluded that a "gross receipts" definition would be
"perverse" in the context of Santos_involving an illegal gambling operation_he concurred with
the judgment and interpreted the statutory term "proceeds" as "profits." Id. The dissent,
authored by Justice Alito and joined by Chief Justice Roberts and Justices Kennedy and Breyer,
concluded that "proceeds" should be defined as gross receipts (in the opinion’s words, “the total
amount brought in"). Id. at 2035-2045 (Alito, J., dissenting).
Justice Scalia, joined by Justices Souter and Ginsburg, took issue with Justice Stevens’
99 66
position, stating that the Court had "never once giving the same word, in the same statutory
provision, different meanings in different factual contexts." Id. at 2030 (Scalia, J.). He also
disagreed with Justice Stevens’ legislative history assessment. Id. at 2030 n.8. Justice Scalia
then, after noting that the holding of the case is necessarily limited by Justice Stevens’ opinion,
id. at 2031 (citing Marlcs v. United States, 430 U.S. 188, 193 (l977)), offered his own
interpretation of the opinion’s stare decisis effect:
21 ustice Alito, in dissent, noted that five Justices (Justice Stevens, and Justice Alito
writing for Chief Justice Roberts and Justices Kennedy and Breyer) agreed with this statement.
Santos, 128 S. Ct. at 2035 and n.l (Alito, J., dissenting).
4
[T]he narrowness of [Justice Stevens’] ground consists of finding that "proceeds"
means "profits" when there is no legislative history to the contrary. That is all that
our judgment holds. It does not hold that the outcome is different when contrary
legislative history does exist. Justice STEVENS’ speculations on that point
address a case that is not before him, are the purest of dicta, and form no part of
today’s holding.
Id. at 203 l.
The D.C. Circuit has not yet interpreted Santos’s enduring holding, and its sister Circuits
are split on the issue.3 ln this situation, all that a District Court can do is read Sant0s and come to
its own conclusion. This Court, having done that, does not reach the same conclusion Justice
Scalia did as to Santos’s holding. To this Court, it appears that when Justices Scalia’s and
Stevens’ opinions are read together, Santos defines "proceeds" as "profits" only in the context of
an illegal gambling operation. lt does not mandate a definition in the context of defendant’s
alleged unlawful activity (mail fraud). Accordingly, Santos does not suggest that the Court must
3Some take Justice Scalia’s view. See, e.g., Unitecl States v. Hall, 549 F.3d 1033, 1042
(6th Cir. 2008) ("In June 2008, the Supreme Court [in Santos] . . . held that the term ‘proceeds’
as used in 18 U.S.C. § 1956 refers to ‘profits,’ not ‘receipts’ of an illegal enterprise."); Unitea’
States v. Yusuf, 536 F.3d 178, 185 (3rd Cir. 2008) ("[T]he Supreme Court, in United States v.
Santos, recently clarified that the tenn ‘proceeds,’ as that term is used in the federal money
laundering statute, applies to criminal profits, not criminal receipts, derived from a specified
unlawful activity."); United States v. Lazarenko, 546 F.3d 593, 605 (9th Cir. 2008) (“[Santos]
concluded that the term [‘proceeds’], left undefined in the statute, was ambiguous as to whether
it meant ‘profits’ or ‘receipts,’ and so defined it in the more defendant-friendly terms of ‘profits,’
based on the rule of lenity."). Others are less certain. See, e.g., United States v. Levesque, 546
F.3d 78, 82 (lst Cir. 2008) ("ln Santos, the Court ruled, under the rule of lenity, that the term
‘proceeds’ in the federal money-laundering statute . . . should be interpreted as ‘profits’ rather
than ‘receipts,’ at least when the predicate offense is an illegal lottery operation.") (emphasis
added); Unitea’ States v. Brown, 553 F.3d 768, 785 (5th Cir. 2008) ("[N]ot even after Santos is
the law ‘clear’ on what the prosecution should be required to prove as ‘proceeds’ in this
case . . . ."); United States v. Howard, 2009 WL 205649 at *10 (4th Cir. Jan. 29, 2009)
(unpublished opinion) ("Because Santos does not establish a binding precedent that the tenn
‘proceeds’ means ‘profits,’ except regarding an illegal gambling charge, we are bound by this
Court’s precedent establishing that ‘proceeds’ means ‘receipts."’).
5
dismiss Count Eight of the superseding indictment.
The Court cannot grant defendant’s motion [107] for acquittal on either of its theories,
and the motion shall therefore be denied.
B. Motion [114] to Dismiss Superseding Indictment as Violative of the Double
Jeopardy Clause
If a judge declares a mistrial without being compelled to do so by "manifest necessity,"
then retrying the defendant on the same charges would violate the Double Jeopardy Clause of the
Fif’th Amendment. See, e.g., United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824).
Defendant claims that his is such a case. Defendant argues that before declaring a mistrial, the
Court should have provided additional guidance on the legal issue of "consent." Defendant also
argues that the Court erred by declining to poll the foreperson or the jurors individually as to the
extent to which the jury was deadlocked. The question presented by the motion, again, is
whether the Court’s declaration of a mistrial was supported by manifest necessity. The Court
concludes that it was and will therefore deny defendant’s motion to dismiss.
1. United States v. Wecht Informs the Court ’s Consideration of T his Motion.
Since the parties briefed this issue, the Third Circuit decided United States v. Wecht, 541
F.3d 493 (3d Cir. Sept. 5, 2008), cert. deniea', 129 S. Ct. 658 (Dec. 1, 2008), a factually similar
case which sheds some light on the issue of manifest necessity and the breadth of the trial court’s
discretion. Because of its applicability, it is discussed here at length before analysis of
defendant’s motion. Wecht was more complex than defendant’s case; it involved forty-one
counts of theft, wire fraud, and mail fraud and consumed twenty-three trial days before closing
arguments concluded. Id. at 495. After almost one-and-a-half weeks of jury deliberation, the
jury sent a note asking:
Out of the 41 counts if any one or more count the jury cannot come to unanimous
agreement on, does that constitute a hung jury?
Ia'. at 496. After consulting with counsel, the court sent a written response to the jury:
The answer to your question is "no." It is your duty, as j urors, to consult with one
another, and to deliberate with a view to reaching an agreement if you can do so
without violence to your individual judgment. Each of you must decide the case
for yourself, but do so only after an impartial consideration of the evidence in the
case with your fellow jurors. In the course of your deliberations, do not hesitate to
re-exarnine your own views, and change your opinion, if convinced it is
erroneous. But do not surrender your honest conviction as to the weight or effect
of evidence solely because of the opinion of your fellow jurors, or for the mere
purpose of retuming a verdict.
Id. Except for the first sentence, that text tracked verbatim the Third Circuit’s Model Criminal
Jury instruction 9.05 ("Deadlocked Jury - Return for Deliberations"). One week later, the jury
sent another note:
After considering all counts in a variety of ways and in reconsideration of all
individual opinions according to the court instructions_we have unanimously
agree [sic] we have reached an impasse & respectfully request direction from the
court. We agree additional deliberation would not be helpful.
Id. Upon reading this note, the court informed counsel that it "was inclined to poll the jurors
individually to ask whether they were ‘hopelessly deadlocked’ and whether further deliberations
would lead to a unanimous verdict . . . ." Id. The government requested an instruction clarifying
that partial verdict on any of the counts was a possibility. Id. Defendant Wecht supported an
individual poll. Id. The court proceeded with the individual poll, and each juror agreed that (l)
they were hopelessly deadlocked and (2) further deliberations would not lead to a unanimous
verdict. The court then gave the full Model Criminal Jury instruction 9.05 and sent them back to
continue deliberations.
After the jury left, the government renewed its request that the court clarify for the jury
the possibility of a partial verdict. Ia'. at 497. Wecht objected and cross-moved for a mistrial on
the basis of the individual poll. Id. The court denied the government’s motion that day and
denied Wecht’s motion on the next day of deliberations. Id. The following day the court, having
received another note from the jury announcing deadlock," declared a mistrial, Id. at 497-99.
immediately after doing so he asked the government whether it planned to retry the case; the
government indicated that it did, and the court set a trial date. Ia’. at 498.
After the ruling, Wecht appealed to the Third Circuit seeking dismissal of the indictment.
Id. at 499. The court of appeals found that the trial judge "did not follow the ideal set of
procedures." Id. at 501. The panel found that the trial judge did not follow Comment 9.06 to the
Model instructions, which recommended that if the jury was still deadlocked after instruction
9.05 was given in hill, the judge should (l) question the foreperson as to the extent of the
dead1ock, (2) question each juror individually on the same issue, and then (3) consult with the
parties outside the jury’s presence as to whether a mistrial should be declared. (The judge polled
the jurors and consulted with the parties before giving instruction 9.05.) The judge also failed to
make an explicit finding of "manifest necessity" before declaring a mistrial, as recommended in
"The text of the note was revealed after the declaration:
Pursuant to court instructions the jury contends we have exhausted all further
deliberation efforts. We agree unanimously that we are unable to reach a
unanimous verdict_on all 41 counts and are essentially deadlocked in the case of
United States of America vs. Cyril H. Wecht.
Ial. at 499.
step (3) of the Comment. Nonethe1ess, the panel concluded that because Comment 9.06 was
only a "recommendation" rather than a "mandate," it could not be said that the trial judge
"violated" the Comment. Id. at 502. But the panel found that the judge did violate Federal Rule
of Criminal Procedure 26.3, which states that "[b]efore ordering a mistrial, the court must give
each defendant and the government an opportunity to comment on the propriety of the order, to
state whether that party consents or obj ects, and to suggest altematives." The trial judge
consulted with the parties before giving the full instruction 9.05~but not afierward. The Third
Circuit held that to comply with Rule 26.3 the consultation must occur after the "Deadlocked
JurY’ instruction but before the declaration of a mistrial.
However, the panel still concluded that dismissal of the indictment on double jeopardy
grounds would be improper. The main issue remained "whether, under the substantive law
governing mistrials, the indictment against Wecht must be dismissed because the District Court
improperly declared a mistrial." Id. at 504. The panel quoted the Supreme Court:
[T]he trial judge’s belief that the jury is unable to reach a verdict [has] long [been]
considered the classic basis for a proper mistrial, . . .
. . . [T]here are especially compelling reasons for allowing the trial judge
to exercise broad discretion in deciding whether or not "manifest necessit)?’
justifies a discharge of the jury. On the one hand, if he discharges the jury when
further deliberations may produce a fair verdict, the defendant is deprived of his
"valued right to have his trial completed by a particular tribunal." But if he fails
to discharge a jury which is unable to reach a verdict after protracted and
exhausting deliberations, there exists a significant risk that a verdict may result
from pressures inherent in the situation rather than the considered judgment of all
the jurors. if retrial of the defendant were barred whenever an appellate court
views the "necessit}f’ for a mistrial differently from the trial judge, there would be
a danger that the latter, cognizant of the serious societal consequences of an
erroneous ruling, would employ coercive means to break the apparent deadlock.
Such a rule would frustrate the public interest in just judgrnents.
Id. at 505-06 (quoting Arizona v. Washington, 434 U.S. 497, 509-10 (1978)).5 With this
discretion in mind-lessened somewhat by the trial judge’s violation of Rule 26.3-the panel
considered ten factors in turn:
"l. a timely objection by the defendant;
2. the jury’s collective opinion that it cannot agree;
3. the length of jury deliberations;
4. the length of the trial;
5. the complexity of the issues presented to the jury;
6. any proper communications between the judge and jury;
7. the effects of exhaustion and the impact of coercion of fiirther deliberations on
the J'HIY[;]
8. whether the court provided counsel an opportunity to be heard;
9. whether the court considered alternatives to a mistrial; and
10. whether the court’s decision was made after adequate ref1ection."
Id. at 506 (quoting Comment 9.06 and various decisions from other Circuits). The Wecht panel
concluded that Factors (8), (9), and (10) harther decreased the deference to the trial judge in that
case, that Factors (l) and (7) did not weigh in that case, and that the remaining factors (2)-(6)
(especially (2)) weighed in favor of the trial judge. Upon this analysis-with five factors
weighing in favor of deferring to the trial court’s decision and three against-the panel concluded
that manifest necessity did compel the mistrial and denied Wecht’s motion to dismiss the
indictment,
5Much of this language has also been quoted by the D.C. Circuit in this context. See
United States v. Glover, 731 F.2d 41, 46-47 (D.C. Cir. 1984).
10
2. Wecht-Style Analysis Does Not Reveal Error in This Case.
Although Wecht is not binding precedent in this Circuit, it does represent a recent detailed
and factually similar assessment of the issues at play in this case (and one for which the Supreme
Court has denied ceitiorari). And although this Circuit may not pick the exact same ten factors
against which the Third Circuit measured the Wecht trial judge, they remain a fair approximation
of the factors that might reasonably be considered. See, e.g., United States v. Ligon, 781 F. Supp.
1, 6 (D.D.C. 1991, as am. 1992) (Gasch, J.) (citing Arnold v. McCarthy, 566 F.2d 1377, 1387
(9th Cir. 1978)) (listing the same factors (l)-(7) as Wecht). Comparing this Court’s record to
that of the trial judge in Wecht, there can be no doubt that the Wecht panel-and an analogous
panel within this Circuit-would likely conclude that this Court’s mistrial declaration was
supported by manifest necessity and thus not in error. in fact, as described below, it is not
unlikely that a court of appeals would view nine of the ten Wecht factors as supporting this
Court’s decision to declare a mistrial.
At the outset, it should be noted that this Court complied with F ederal Rule of Criminal
Procedure 26.3, which the Wecht panel chided its trial court for neglecting. After giving the
Thomas anti-deadlock instruction-roughly analogous to the Third Circuit’s instruction
905-this Court consulted the parties regarding whether a mistrial should be declared (allowing
the defendant to make a timely obj ection). A spirited debate ensued, only after which did the
Court declare a mistrial. (See Def.’s Mot. [114] Ex. A (trial transcript from May 23, 2008).)
Accordingly, a court of appeals would not only grant this Court more deference than did the
panel in Wecht, but here factors (1), (8), (9), and (10) would favor this Court’s conclusion of
ll
manifest necessity (as was not the case in Wecht).
Factors (3), (4), and (5) favor this Court no more-but no less_than they did the Wecht
judge. The Wecht panel concluded that for a forty-one-count indictment and twenty-three trial
days, one and a half weeks was sufficient time for jury deliberation before a mistrial might be
declared. Defendant’s case here was less complex, but the relative time-frames were roughly
commensurate. in defendant’s case, there was a nine-count superseding indictment and trial
argument took eleven days. A mistrial was declared on the third day of j ury deliberations, These
metrics are not out of line from those in Wecht. Accordingly, as the Wecht panel considered
factors (3), (4), and (5) to favor the trial judge’s decision to declare a mistrial, it is likely that this
Circuit would view those factors as supporting this Court’s decision.‘
Factor (Z)-which weighed so heavily in the Wecht decision-favors this Court as well.
Again, factor (2) considers "the jury’s collective opinion that it cannot agree." Here, defendant’s
jury unambiguously declared that it was hung on the second day of deliberations. As the District
of Colurnbia’s model jury instructions recommend, the Court delivered the Thomas anti-deadlock
instruction and sent the jury back to continue deliberating. The jury retumed its second deadlock
note the next day. Defendant complains that the Court did not poll the foreperson or the jury as
to the extent to which the jury was hung. But unlike the Third Circuit’s instructions in Wecht,
the District of Columbia’s Model Criminal Jury instructions do not have supplemental anti-
deadlock instructions analogous to the Third Circuit’s Comment 9.06 (which suggested such
"With regard to factor (5), the Court realizes that a comparison of the numbers of indicted
counts, trial days, and deliberation days are at best a rough and imprecise way to gauge "the
relative complexity of the issues presented to the jury." However, there is no perfect way to do
so, and this is the most economical comparative technique the Court has at its disposal.
12
polling).7 And even though the Wecht panel said that the trial court’s failure to poll was "less
than ideal," it concluded that such a failure did not militate for reversa1. Wecht, 541 F.3d at
501-02. The Court here opted against such polling (as well as against supplemental legal
instruction) because of the inherent risk of coercion. Not only do the D.C. model instructions
indicate that that decision was defensible, but the decision would also likely gamer the support of
Wecht factor (7) (considering "the effects of exhaustion and the impact of coercion of further
deliberations on the jury").
The only factor that went in the Wecht judge’s favor but would likely not benefit this
Court is factor (6) (evaluating "any proper communications between the judge and jury"). The
Wecht panel cited the j udge’s pre-deadlock-instruction jury polling in concluding that this factor
supported the judge’s mistrial declaration. Although this Court did communicate with the jury
extensively through notes, it did not poll jurors. As a result, the Court carmot conclude from
Wecht that a court of appeals would view factor (6) as weighing in this Court’s favor.
When the ten factors are viewed together, however, it becomes clear that an appellate
panel would likely deny a challenge to the Court’s mistrial declaration. Based on Wecht, nine of
7in fact, the D.C. instructions are particularly attuned to the risk of coercion posed by such
supplemental communications:
Because of the potential for coercion inherent in any anti-deadlock instruction, the
[D.C.] Court of Appeals has cautioned that an anti-deadlock charge generally
should only be delivered to a hung jury once. . . . Notwithstanding [that], a jury
can repeatedly be instructed on points of law and repeatedly be given non-
coercive instructions to resume its deliberations before an anti-deadlock
instruction is given.
Criminal Jury instructions for the District of Colurnbia, 4th ed. rev. (Barbara Berginan, ed.), p.
187 (instr. 2.91 cmt.) (citing Epperson v. United States, 495 A.2d 1170 (D.C. 1985)) (emphasis
added).
13
the ten factors appear to favor the Court. Wecht endorsed the trial judge with only five of ten
possible supporting factors, and there the panel’s deference to the trial judge was eroded by
procedural missteps not present in this case. This Court therefore concludes that Wecht strongly
suggests that defendant’s motion for acquittal should be denied.
3. N0r Do Cases Cited By Defendant Reveal Error.
None of the cases cited by defendant convince the Court that, Wecht notwithstanding, its
declaration of a mistrial was in error. To the contrary, the cases defendant cites are all quite
distinguishable from his situation.
Defendant’s primary argument is that the Court erred in not providing supplemental
clarifying instruction on the issue of consent. Defendants cites several cases in which
convictions were overturned for lack of clarifying instructions. (Def`.’s Mot. [114] at 7 (citing
Wrz'ght v. United States, 250 F.2d 4, ll-13 (D.C. Cir. 1957) (en banc) (insufficient instruction on
the issue of insanity) ("Where . . . the need for more [instruction] appears, it is the duty of the
judge to fill in the sketch, as may be appropriate on the basis of the evidence, to provide the jury
with light and guidance in the performance of its difficult task."); United States v. Bolden, 514
F.2d 1301, 1308 (D.C. Cir. 1975) (insufficient instruction on intent) (“When the court refused to
do anything more than reread the statute and the standard instruction, despite cogent requests
from the jury and both government and defense counsel, it could well have left the jury with the
incorrect impression that coincidence was sufficient to convict.")).). These cases are
unconvincing for two related reasons. First, they deal with reversals of convictions, not with
reversible error in the declaration of a mistrial. it is well established that the trial court has
14
significant discretion in determining whether manifest necessity compels a mistrial,g and
defendant has provided no rationale for why these conviction reversals should compel dismissal
of an indictment following a mistrial.° Second, and moreover, even these cases recognize the
discretion granted to the trial court in instructing the jury (as reflected in the quoted excerpts).
They stand for the principle that such discretion has its limits, not that failure to give a requested
instruction or clarification is always reversible error. in short, defendant has not established that
the Court lacked discretion to decline supplementary instruction on the issue of consent.
Defendant also cites case law for the principle that a juror’s refusal to follow the law
constitutes good cause to dismiss that juror. (Def.’s Mot. at 8.) The Court accepts that
premise-but in defendant’s case there was no clear refusal to follow the law. Defendant treats
the written statement of one juror complaining that "[w]e [the jury] are not doing anything in
accordance with evidence, testimony, instructions or otherwise" (Notes From Jury [101] at 6) as
clear evidence that jurors were not following the law. it is not as clear to the Court. in the
Court’s view that note was more an expression of frustration with the process, and as such it did
not necessitate additional instruction to the jury on its duty to follow the law. Faced with such
weak and ambiguous evidence of j ury misconduct, the Court decided against providing
supplementary instruction and thereby risking coercive effect.
SSee, e.g., United States v. Glover, 731 F.2d 41, 47 (D.C. Cir. 1984) (quoting Arz`zona v.
Washington, 434 U.S. 497, 510 n.28 (1978)) ("The reason for the great deference accorded a trial
court’s declaration of mistrial in the deadlocked jury situation ‘is that the trial court is in the best
position to assess all the factors which must be considered in making a necessarily discretionary
determination whether the jury will be able to reach a just verdict if it continues to deliberate."’).
"’At oral argument on Februaiy 25, 2009, defendant argued to the effect that "the standard
of reversal is the standard for dismissal." However, as defendant cited no legal support for this
position, the Court declines to adopt it.
15
Because the Court did not exceed the bounds of its discretion in declining to give the
supplementary jury instructions requested by defendant, and because there was no convincing
evidence of juror misconduct, the Court cannot grant defendant’s motion based on the cases
cited. Therefore, because Wecht suggests that the Court’s trial conduct was proper and
defendant’s cited cases do not demonstrate otherwise, the Court shall deny defendant’s Motion
[114].
C. The Prosecutorial Misconduct Alleged in Motion [128] Does Not Rise to a Level
Justifying Dismissal of the indictment or Preclusion of Khouj’s Future Testimony
Defendant moves [128] to dismiss the indictment or, in the altemative, to preclude
govemment witness Abdullah Khouj from testifying in a retrial. Defendant argues that dismissal
is the proper remedy for Khouj ’s allegedly false statements-allegedly made with the knowledge
of the govemment-during defendant’s first trial. But defendant spends most of his time
describing Khouj ’s alleged acts of perjury themselves and relatively little time on the more
important issue of whether the govemment knew the statements were false when Khouj made
them. Defendant offers no legal support that dismissal, or preclusion of future testimony, is the
proper remedy absent govemment knowledge of Khouj ’s peijury. And although dismissal of the
indictment could be proper remedy for egregious actions by govemment prosecutors, the
defendant’s spotty allegations do not provide grounds for such extraordinary action by the Court.
in the altemative, defendant alleges that Khouj obstructed justice by paying and secreting away a
potential key witness for defendant during the original trial. Defendant argues that this
obstruction provides grounds for precluding Khouj from testifying at any future retrial, but
16
defendant offers no legal support for that position, Thus, as explained below, the Court will deny
defendant’s motion.
1 . T he Claimed Govemment Knowledge of Khouj ’s Alleged Perjury Does Not Justijj)
Dismissing the Indictment
Defendant prefaces his allegations of Khouj’s various allegedly perjurious statements by
contending that "the Govemment knowingly grounded its prosecution on perjurious and false
accusations." (Def.’s Mot. at l0.) But a careful reading of defendant’s allegations reveals only a
few claims of prosecutors’ actual or constructive knowledge of Khouj ’s perjuiy:l°
' Khouj testified at trial that he had never heard of "Blue Line Travel"_a Darui entity to
which some of the checks at issue were written_before August 23, 2006. (Mot. at 19.)
Defendant claims that the govemment was in possession of pretrial evidence showing that
Khouj engaged in transactions with Blue Line Travel on five instances between 2001 and
2003. (Id. at 19~20.)
' Khouj testified at trial that he had donated his islamic Center salary to charity in 2003 and
2004. This was material because it bolstered the govemment’s argument that Khouj had
sacrificed for the good of the Center. Defendant claims that the govemment had Khouj ’s
bank records pre-trial, and that those bank records showed that the money he donated was
not in fact his salary. (Id. at 29~31.)
' Khouj testified at trial that he gave two checks from the Saudi Embassy to defendant to
deposit in the "Special Account"_an Islamic Center account for which Khouj was the sole
named account holder and signatory-and that Khouj did not know whether defendant had
deposited those checks. Defendant now claims that that testimony conflicted with Khouj ’s
pre-trial statements to the FBI and bank records in the govemment’s possession (which
defendant alleges indicate that the checks were deposited in Khouj ’s personal account).
(Id. at 31-34.)
'°Not listed in the text are defendant’s various weak inferences of govemment knowledge.
F or example, defendant in several cases alleges that the govemment should have known that an
element of Khouj ’s testimony was false because it conflicted with evidence submitted by
defendant (See, e.g., Mot. at 26-29 (conceming a check made out to Aston James); Mot. at 15
n.8, 38 (conceming Khouj’s relationship with Debbi Estrada).) Such weak allegations will not
be credited by the Court in this context.
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As defendant notes, govemment prosecutors have a duty to do justice. "it is as much [the
prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction
as it is to use every legitimate means to bring about a just one." Berger v. United States, 295
U.S. 78, 88 (1935) (quoted in Mot. at 35). Defendant’s motion cites to United States v. Wallach,
935 F.2d 445 (2d Cir. 1991), in which the court ordered a new trial for defendant based on "(l)
the materiality of the govemment witness’s perjury to the verdict and (2) the extent to which the
prosecution was aware of the perj ury." (Mot. at 36.) But even in Wallach, the remedy for such
perjury was a new trial, not dismissal of the indictment. Defendant argues that Khouj ’s perjury
was more egregious than that in Wallach. However_even assuming defendant’s allegations are
true-defendant’s motion cites to no case in which similar perjury (and govemment knowledge
thereof) justified dismissal of the indictment. Similarly, defendant cited Napue v. Illinois, 360
U.S. 264 (1959), in which a prosecutor’s failure to correct false testimony resulted in reversal of
the conviction (not dismissal of an indictment).
Defendant’s Reply did provide a few Ninth Circuit cases indicating that dismissal of the
indictment might be an appropriate remedy. F or exaniple:
A district court may dismiss an indictment on the ground of outrageous
govemment conduct if the conduct amounts to a due process violation. if the
conduct does not rise to the level of a due process violation, the court may
nonetheless dismiss under its supervisory powers. These powers may be exercised
for three reasons: to remedy a constitutional or statutory violation; to protect
judicial integrity by ensuring that a conviction rests on appropriate considerations
validly before a jury; or to deter future illegal conduct.
United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991) (intemal citations
omitted) (qu0ted in Def.’s Reply at 7). While this Court does not consider the isolated
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allegations against the govemment to rise to the level of a due process violation,“ Barrero-
Moreno does indicate that the Court’s supervisory powers might allow it to dismiss the
indictment if, in the Court’s discretion, justice requires it. (See also Def.’s Reply at 8 (citing
United States v. Kojayan, 8 F.3d 1315, 1325 (9th Cir. 1993) (giving the trial court the option on
remand to "dismiss the indictment with prejudice as a sanction for the government’s
misbehavior"). However, defendant’s allegations do not convince this Court of the need for it to
exercise its supervisory powers and dismiss the indictment.” Accordingly, defendant’s prayer
that the indictment be dismissed shall be denied.
“'i`he Barrero-Moreno court explained that “[t]o violate due process, govemmental
conduct must be so grossly shocking and so outrageous as to violate the universal sense of
justice." Barrera-Moreno, 951 F.2d at 1092 (intemal citations and quotation marks omitted).
Defendant has not shown the govemment’s conduct to rise to such a level.
”That is not to say that the govemment’s conduct up until this point has been exemplary.
The govemment has at times demonstrated neglect. For example, during a status conference on
September 30, 2008, the govemment (AUSA Sharp) represented to the Court that it had not
interviewed Ms. Estrada. (Trans. at 6~7 ("THE COURT: Has the govemment interviewed Ms.
Estrada? MR. SHARP: No, we have not, Your Honor.").) However, the FBI’s 302 interview
summary from September 25, 2008 indicates that the FBI agent investigating the case did speak
with a woman identified as Estrada only a few days prior to the hearing:
[Fatima] GOODWiN[, Administrative Assistant for the islamic Center,]
advised [Estrada] that SA McGillicuddy was from the Federal Bureau of
investigation (FBi) and wanted to ask [her] a few questions. GOODW]N then
asked [Estrada] if she would answer questions for SA McGillicuddy. The woman
responded, "No. is there anything else?"
SA McGillicuddy then asked [Estrada] if there was any place outside the
Center where she would feel more comfortable talking to him, [Estrada]
responded, "No. i’ve seen the X-Files. i’ve watched it my whole life. 1 have
nothing to say to the FBi."
FBI 302 dated Sept. 25, 2008 (submitted to the Court on Feb. 25, 2009) at 1. The govemment
should have revealed this interaction in response to the Court’s question. But although the
govemment’s conduct has at times not been exemplary, it has also not, in the Court’s opinion,
sunk anywhere near the point where dismissal pursuant to the Court’s supervisory powers would
be appropriate.
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2. Khouj ’s Alleged Obstruction of Justice Does Not Justifi) Precluding Him F rom
Testij)ing at Any Future Retrial.
in the altemative, defendant argues that Khouj obstructed justice during the original trial
and thus should be precluded from testifying in any future retrial. The first part of defendant’s
obstruction claim is the ten alleged instances of Khouj ’s perjury at trial. (See Mot. at 11-34,
41~42.) The second element is defendant’s allegation that Khouj paid potential witness Debbi
Estrada to stay hidden in Virginia during the trial.“ Defendant credibly claims that Estrada’s
testimony would have benefitted him at trial. After spending several paragraphs arguing that
Khouj should be indicted under 18 U.S.C. § 1503 for secreting Estrada-a matter not before the
Court-defendant fails to provide any legal support for his assertion that preclusion of future
testimony is appropriate here, even assuming his allegations against Khouj are true. Defendant
only argues that, if allowed to testify again, Khouj will again commit pe1jury. Without legal
support for the requested remedy, the Court will not grant it.
Because the Court concludes that neither remedy requested by defendant is appropriate,
the Court shall deny Motion [128].
D. Defendant’s Motion [142] Fails to Make Plain Allegations of Evidentiary
Misconduct and Does Not Justify Dismissal of Indictment or Sanctions.
Defendant’s fourth and final motion before the Court, Motion [142] for Dismissal of
indictment and Sanctions, alleges evidentiary misconduct by the govemment. As explained
above in relation to the govemment’s alleged suboming of perjury, this Court will only dismiss
"The govemment states that its investigation does not support defendant’s allegation.
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an indictment for govemment misconduct if the misconduct rises to the level of a due process
violation or the Court deems dismissal appropriate under its supervisory powers. it is clear that
defendant is attempting to claim of govemment misconduct, but the convoluted nature of the
motion leaves the Court unable to make out any specific claims. This is not to affirmatively state
that there was no evidentiary misconduct by the govemment, but rather that if there was,
defendant’s motion does not clearly identify it. Especially if he seeks to obtain extraordinary
remedies such as dismissal of the indictment and sanctions against the government (as he does
here), defendant must clearly identify the alleged govemment misconduct. Defendant has not
done so. Defendant’s Motion [142] shall be denied.
CONCLUSION
As described above, defendant has not justified a judgment of acquittal, dismissal of the
indictment, or sanctions against the govemment. Accordingly, all four motions shall be denied.
A separate Order shall issue this date.
S/Z/Qj
DATE ROYCE C. LAMBERTH
CHIEF JUDGE
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