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Media Alerts - United States v. Ghailani--Second Circuit
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October 25, 2013
  United States v. Ghailani--Second Circuit
Headline: Second Circuit Affirms Conviction and Life Sentence of Convicted Al Qaeda Terrorist Ahmed Khalfan Ghailani

Area of Law: Criminal

Issue(s) Presented: Whether the Speedy Trial Clause of the Sixth Amendment of the Constitution prevents the United States from trying a defendant who was held abroad for several years by the CIA and the Department of Defense while his indictment was pending.

Brief Summary: On January 25, 2011, Ahmed Khalfan Ghailani was convicted in the United States District Court for the Southern District of New York of conspiring to bomb the United States Embassies in Nairobi, Kenya and Dar es Salaam, Tanzania. These bombings, which took place simultaneously on August 7, 1998, killed over two hundred people, and injured thousands. The lengthy time span between the bombings and Ghailani's conviction stemmed from the fact that he eluded capture until 2004, at which point the CIA detained and interrogated him outside the United States for about two years. He then spent several years in custody at Guantanamo Bay. His criminal trial in federal district court began in 2009, at which point the trial judge rejected his argument that the Speedy Trial Clause of the Sixth Amendment barred his prosecution. The Second Circuit affirmed his conviction, holding that the Speedy Trial Clause was not violated because Ghailani had been detained for national security reasons. The court also deemed his life sentence reasonable.

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Extended Summary: In 1996 or 1997, Ahmed Khalfan Ghailani was recruited by al Qaeda as a member of its "East Africa Crew," and became part of the logistics team for the bombings of the American embassies in Nairobi, Kenya and Dar es Salaam, Tanzania. In the months prior to the bombings, Ghailani procured a number of items necessary for building an explosive device. He also hid explosive devices in his home, and substantially participated in the transportation of the devices to the embassy. Prior to the bombings, Ghailani, along with several other members of al Qaeda, flew (with a false passport) to Pakistan.

Ghailani was indicted with his co-conspirators in 1998, but evaded authorities until he was ultimately captured abroad on July 25, 2004. In an effort to obtain "critical, real-time intelligence about terrorist networks," Ghailani was detained and interrogated by the CIA outside of the United States for about two years. After two years, Ghailani was transferred to the Department of Defense at Guantanamo Bay as an "enemy combatant." About a year later, in March 2008, Ghailani was charged before a military commission "with violations of the laws of war, in connection with the bombing of the embassy in Dar es Salaam and with his efforts as a part of al Qaeda in the years during which he remained a fugitive." Shortly the military court proceedings began, after, President Obama suspended the military commissions by executive order.

In March 2009, Ghailani filed a habeas petition in the United States District Court for the Southern District of New York, asserting his right to a speedy trial. The government responded by announcing that it would try Ghailani in the Southern District of New York. Ghailani moved to dismiss the indictment on grounds that it violated the Speedy Trial Clause - given that he had been held for nearly five years by the United States government. Denying Ghailani's motion to dismiss the indictment on the ground that Ghailani had not received a speedy trial, the district court held that "[c]onsidering all of the circumstances, particularly the lack of significant prejudice of the sort that the Speedy Trial Clause was intended to prevent, the delay in this case did not materially infringe upon any interest protected by the right to a speedy trial."

After about four weeks of trial, the jury convicted Ghailani of conspiring to destroy United States buildings and property, and made a specific finding that Ghailani's conduct directly or proximately caused death to a person other than a conspirator. The district court sentenced Ghailani to a term of life in prison. Ghailani appealed the decision on the grounds that 1) the district court should have granted his motion to dismiss because he did not receive a speedy trial, 2) the district court also erred in giving the jury a "conscious avoidance" charge, and 3) a sentence of life in prison was unreasonable.

Affirming the district court's ruling that Ghailani's Sixth Amendment right had not been violated, the Second Circuit reasoned that "the Supreme Court has recognized for more than a century that the constitutional right to a speedy trial is not 'so unqualified and absolute' that it must prevail over 'the demands of public justice.'" In so doing, the court applied the Supreme Court's four-factor balancing test "for evaluating a defendant's claim that his or her speedy trial right has been violated." This test considers: "(1) the length of the delay; (2) the reasons for the delay; (3) whether the defendant asserted his right in the run-up to the trial; and (4) whether the defendant was prejudiced by the failure to bring the case to trial more quickly." The Second Circuit concluded that although the delay here was "undoubtedly considerable," it was not excessive given the national security interests at issue. "There is no evidence that the government ever acted in bad faith to gain a tactical advantage over or to prejudice Ghailani with respect to his defense of th[e] indictment," the court observed.

The court also rejected Ghailani's conscious avoidance argument, disagreeing "that there was insufficient evidence for a rational juror to infer that he was aware of the likelihood that his efforts would contribute to the bombing of American embassies." Finally, in addressing Ghailani's sentence, the Second Circuit "conclude[d] that a sentence of life imprisonment, based on a conviction for conspiring to destroy United States buildings and property and directly or proximately causing the deaths of 224 people, was neither procedurally nor substantively unreasonable." The conviction was therefore affirmed in full.

Panel: Circuit Judges Calabresi, Cabranes, and Parker

Argument: 05/18/2013

Date of Issued Opinion: 10/24/2013

Docket Number: 11-320-cr

Decided: Affirmed.

Case Alert Author: Sophia Sofferman

Counsel: Peter Enrique Quijano, Nancy Lee Ennis & Anna N. Sideris (on the brief) Quijano & Ennis, P.C., New York, NY, for Plaintiff - Appellant, Michael Fabriarz, Assistant United States Attorney, Harry A. Chernoff, Nicholas J. Lewin, Sean S. Buckley, Katherine Polk Failla, Assistant United States Attorneys (on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, for Defendant - Appellee

Author of Opinion: Judge Cabranes

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 10/25/2013 08:48 AM     2nd Circuit  

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