SIDNEY H. STEIN, District Judge.
Defendant Uzair Paracha ("Paracha") was convicted after a jury trial of conspiracy and substantive charges of providing material support and resources to al Qaeda; making or receiving a contribution of funds, goods, or services on behalf of al Qaeda; and committing identification document fraud with the intent of providing material support to al Qaeda in order to facilitate a terrorist act. Paracha has moved for a new trial pursuant to Fed. R. Crim. P. 33 on the grounds of newly discovered evidence. For the reasons set forth below, the Court concludes in light of that new evidence that allowing defendant's conviction to stand would be a manifest injustice, and therefore grants the motion for a new trial.
The Court assumes familiarity with the underlying facts and pretrial proceedings in this case, which are set forth more fully in United States v. Paracha, No. 03-CR-1197, 2004 WL 1900336 (S.D.N.Y. Aug. 24, 2004), and United States v. Paracha, No. 03-CR-1197, 2006 WL 12768 (S.D.N.Y. Jan. 3, 2006), aff'd, 313 F. App'x 347 (2d Cir. 2008). In brief, Uzair Paracha is a Pakistani citizen with permanent resident status in the United States, where he spent significant periods of his life and where several members of his extended family resided. (Trial Transcript ("Tr."), Docs. 78-80 at 219, 258, 648-51, 914, 1186-88.) Paracha received his education in Pakistan, culminating in his graduation from a business college with an MBA in December 2002. (Id. at 817, 914-15, 1062-63, 1075-77.) Defendant then came to New York in February 2003, at the age of twenty-three, in order to help market apartments owned by his father Saifullah Paracha, while living in his aunt and uncle's apartment in Brooklyn. (Tr. at 201-02, 210-11, 230, 358, 648-59, 816, 851-52, 1065-66, 1143.)
As described in more detail below, defendant was arrested on a material witness warrant on March 31, 2003, after being interviewed for three days by agents of the Joint Terrorism Taskforce ("Joint Taskforce"), a collaborative effort between the Federal Bureau of Investigation and the New York Police Department, among other agencies. A federal grand jury charged defendant in October 2003 with five felony counts: conspiracy and substantive charges of providing material support or resources to al Qaeda, a designated foreign terrorist organization; conspiracy and substantive charges of making or receiving a contribution of funds, goods, or services on behalf of al Qaeda; and committing identification document fraud with the intent to provide material support to al Qaeda in order to facilitate a terrorist act. (Indictment, Doc. 6.)
Prior to trial, defendant sought depositions and writs of habeas corpus ad testificandum in order to access four prospective defense witnesses detained by the United States government at Guantanamo Bay, Cuba: Saifullah Paracha, Majid Khan, Ammar al Baluchi,
On the basis of the statements in those summaries, the Court denied Paracha's request for access to KSM himself on the ground that Paracha had failed to make the necessary showing that KSM would provide material testimony. This was because the only statement by KSM that was then available to defendant — that KSM "did not recognize a photograph of Saifullah Paracha taken in the early 1970's" — was "simply too remote and isolated to support a claim that [KSM] would provide material or favorable testimony in Paracha's defense." Paracha, 2006 WL 12768, at *12. As to Saifullah Paracha — defendant's father — the government conceded the materiality of his anticipated testimony, and the Court granted defendant the right to depose him, but defendant ultimately chose not do so. Id. at *3.
Finally, in order to balance government concerns of national security with Paracha's legitimate pursuit of potentially material testimony from Khan and al Baluchi, the Court ruled that defendant was able to present Khan and al Baluchi's testimony by stipulation, in the form of the unclassified summaries of statements made by the two men during their custody, presented to the jury accompanied by instructions along the lines laid out by the Fourth Circuit in Moussaoui. Defendant agreed at the time that the stipulations constituted an "adequate substitution" for live testimony by Khan and al Baluchi. Id. at *13.
At Paracha's jury trial in 2005, the parties stipulated to the fact that Khan and al Baluchi were members of al Qaeda. (Tr. at 227.) The government presented evidence tending to show that Paracha and his father met with these two men in Pakistan and that defendant knowingly agreed to aid al Qaeda by fraudulently assisting Khan's reentry into the United States in order for Khan to carry out a terrorist attack, in return for an investment in one of Saifullah Paracha's businesses of $180,000-200,000 in al Qaeda funds from al Baluchi.
The government's case relied heavily on statements made by defendant himself to government agents before trial. When agents of the Joint Taskforce first approached Paracha at his workplace in Manhattan on the evening of March 28, 2003, he agreed to speak with them at his office and then voluntarily accompanied them to FBI offices, where he was interviewed until approximately 4:00 a.m. the next day. (Tr. at 208-16, 645-50.) In response to the agents' questions, Paracha initially denied that he knew either Khan or al Baluchi, and told the agents instead about a person named Adnan who had asked defendant's assistance in arranging travel from Pakistan to the United States. (Id. at 221-23, 351-53, 358-60, 658-60, 783-88.) Shortly thereafter, however, defendant admitted that "Adnan" was actually Majid Khan, whom Paracha knew and had agreed to help reenter the United States. Specifically, when asked directly if he currently possessed Khan's driver's license, Paracha replied that he did and that he had agreed to help Khan procure a travel document that would allow Khan to return to the United States from Pakistan. (Id. at 224-29, 236, 660-67, 772-73, 788-95.) Along with Khan, Paracha also reported that he had met with Ammar al Baluchi, though he knew him only by other names. (Id. at 226-29, 662-64.)
Though he admitted relatively quickly that he knew Khan, Paracha maintained for some time that he lacked any knowledge of or connection to al Qaeda. In response to repeated questioning by the Joint Taskforce, Paracha told agents that he did not know whether Khan was a member of al Qaeda and further denied involvement by either himself or his father in any terrorist operation. (Id. at 237, 662, 761, 815.) Toward the end of his first day of being interviewed, however, around 4:00 a.m., Paracha changed his story and told agents that he "suspected his father of being al-Qaeda, but that he didn't want to think about it," and that he "wouldn't be surprised" to learn that his father was involved in a terrorist plot, because "his father had met Usama bin Laden" and had expressed admiration for bin Laden as a "very humble guy." (Id. at 237-38; see also id. at 673-74, 818-19, 830.) The agents then ended the interview, approximately nine hours after they first approached defendant. (Id. at 216, 238.) At their suggestion, Paracha agreed to sleep in a hotel room, accompanied by FBI agents, in order to facilitate their continued interview of him the next day. (Id. at 239-41, 425, 674-76, 839-41, 950-58.)
Defendant was advised of his Miranda rights at the beginning of the second day of his questioning. (Id. at 261-64, 677-79, 836-38.) In continued non-custodial interviews over the next two days, defendant initially reiterated his denial of any knowledge of Khan's al Qaeda affiliation, and stated that his father "did not discuss al-Qaeda matters with him." (Id. at 266; see also id. at 681.) But defendant soon contradicted these statements as well, stating that he "learned . . . through his father" that Khan and al Baluchi were al Qaeda members, that "he and his father . . . discussed] al-Qaeda matters at home," and that "he knew his father was dealing with al-Qaeda." (Id. at 270, 280; see also id. at 271-83, 682-83, 728, 743, 821-22, 848-50, 893-95, 929.) Paracha told the agents that "the relationship between his father and al-Qaeda began . . . approximately nine months before [defendant] came here to the [S]tates," (id. at 693): "it all began in the summer of 2002," when his father was approached by men whom defendant suspected were al Qaeda members, (id. at 279; see also id. at 429, 886). Defendant stated that the men asked his father for "financial support" to purchase weapons for the war in Afghanistan against the United States, but that defendant "did not know" whether his father actually gave them any money. (Id. at 279; see also id. at 429-30, 693-94, 765-66, 886-96.) Paracha also said that when he and Khan met in Pakistan in early 2003, Khan told him that "[wie need brothers like you to help us out," which defendant interpreted as Khan attempting to recruit him to join al Qaeda, and that Khan added that "different people provide various levels of assistance to al-Qaeda." (Id. at 273; see also id. at 686-87, 728-29, 861-64, 929-30.)
Paracha elaborated on the "four tasks" Khan had asked defendant to perform in order to make it appear as if Khan had never left the United States and help him obtain travel documents allowing his return to the United States from Pakistan: (1) looking into Khan's immigration paperwork, (2) depositing money into Khan's U.S. bank account, (3) using Khan's credit cards in the United States, and (4) closing Khan's post office box in Maryland. Upon Paracha's own return to the United States in February 2003, defendant stated, he made some minimal efforts toward completing the first of these tasks — performing basic internet research on immigration procedures and calling the Immigration and Naturalization Service ("INS") once or twice posing as Khan, without success. He added that he "didn't get the chance" to close Khan's post office box before the end of March 2003.
At this point, after being "asked about all the stuff that he had just gone through with [the Joint Taskforce agents] for the last couple days, and . . . asked his thoughts on what he had just told" them, Paracha stated that "he thought there was a terrorist plot being planned" — possibly "a plot to set off chemical weapons" — although "he did not know what the plot was." (Id. at 281-82; see also id. at 902.) Defendant added that he "knew he was part of the plot and that he was helping Al-Qaeda out" by agreeing to help Khan reenter the United States. (Id. at 282; see also id. at 879-80, 906.)
On March 31, after three days of interviews, Paracha was served with a material witness warrant and arrested. Over the next two months, he continued to cooperate and answer the questions of the Joint Taskforce agents in a series of proffer sessions at the U.S. Attorney's Office, at which he was accompanied by defense counsel. (Id. at 283-88, 296, 697-98, 713-14, 936-37.)
In these sessions, defendant elaborated on — but also contradicted portions of — his incriminating pre-arrest statements. (See, e.g., id. at 946 ("There were times that Mr. Paracha contradicted himself, proving certain things to be false.").) Paracha did not, in the course of these meetings, ever disavow his admissions to knowing that Khan and al Baluchi were al Qaeda members, that by assisting Khan he was helping al Qaeda, and that his father had business dealings with the terrorist group. (Id. at 312, 528, 745.)
Defendant's description of those dealings, however, deviated significantly from his initial pre-arrest account to the agents. Notwithstanding his previous statement to the agents that the relationship between his father and al Qaeda began with a request for money by the group in the summer of 2002, Paracha now described an earlier interaction, at some unspecified point "prior to 9/11," when his father "was approached by people from al-Qaeda, who were looking to give him money."
Defendant also offered a nebulous and inconsistent description of yet a third transaction, reporting that at some point he observed his father carrying a bag containing $200,000 in cash, which defendant later learned was money from al Qaeda that was then temporarily deposited by Saifullah Paracha in defendant's own bank account, without his knowledge, at the Metropolitan Bank in Pakistan. According to Paracha's various statements as introduced at trial, this bag of money was most likely delivered in the summer of 2002, (id. at 288, 490, 496, 531-32, 739) — either before the request for weapons funding previously described as the beginning of the relationship, (id. at 494), or afterward, (id. at 511-12) — or possibly at some other time altogether, (id. at 511). Paracha stated that the money was then withdrawn from his bank account by his father and returned to al Qaeda, again without defendant's knowledge at the time. But he offered two conflicting accounts of the timeline for that withdrawal, supported by mutually contradictory explanations. Paracha first asserted that the money was withdrawn almost immediately, a "couple days" after the deposit by his father. (Id. at 289.) He remembered that fact distinctly, he claimed, because the size of the rapid withdrawal from his account had prompted the bank president to call him directly; this "out of the blue" phone call was the first time that Paracha learned of the deposit, after the fact. (Id. at 491-92; see also id. at 737-39.) Later, however, Paracha told his interviewers that the money had actually remained in his bank account for "a couple months" — an alternative timeline he explained was designed to allow his father to earn interest on the money before its return to al Qaeda, (id. at 290, 494).
Throughout his pretrial statements, Paracha gave inconsistent explanations of his reasons for agreeing to assist Khan. He stated at times that al Baluchi and Khan offered to "invest" between $180,000 and $200,000 in one of defendant's father's businesses, and that "he thought it was implied that he do the task for Majid Khan in order for he and his father to receive the money from al-Qaeda." (Id. at 270-76; see also id. at 683, 689, 722, 819-20, 850-51.) Thus, when asked his motive, Paracha said first that "it was for the money." (Id. at 282; see also id. at 444-46.) But Paracha alternately described the proffered funds from al Baluchi as "money [that] was supposed to be kept liquid . . . in order for them, al-Qaeda, to get it back at a moment's notice." (Id. at 271; see also id. at 777-79, 854, 927-28.
In addition to the testimony from Joint Taskforce agents, the government presented testimony by an expert witness, Evan Kohlmann, on the history of al Qaeda and its "amorphous" structure, consisting — below the senior hierarchy then led by Usama bin Laden and operational planners, prominently including KSM — of independent cells with specialized roles for different individuals, who often had "very limited information" about the organization as a whole. (Tr. at 103, 116; see also id. at 98-128, 146-50, 166-71, 181-85, 196-97.)
The government also presented evidence corroborating various aspects of Paracha's confessions: the results of a forensic computer investigation verifying Paracha's limited INS-related internet research, (id. at 47-65); and property recovered from defendant's personal possessions as well as a consensual search of his aunt and uncle's Brooklyn apartment, including Khan's identification documents, handwritten instructions detailing the tasks described by defendant, and the key to a Maryland post office box that had earlier been opened in Khan's name by Aafia Siddiqui, (see id. at 230-34, 242-60, 545-66, 589-635, 667-70, 698-702).
The government additionally introduced bank records purporting to corroborate Paracha's accounts of transactions between his father and al Qaeda, but these records only loosely matched the chronology and details of defendant's pretrial statements. Though defendant had described deposits of funds into his own Metropolitan Bank account — such that he was the one to receive a call from the bank president when a suspicious transaction was registered — the only records introduced by the government pertained to an account at that bank in the names of defendant's mother Farhat Paracha and a "Shamin Shafiuddin," whom the Joint Taskforce was unable to identify. (Id. at 302-04, 313-17.
Other portions of Paracha's pretrial statements were not corroborated at all. Though Paracha stated consistently that he did not know Aafia Siddiqui beyond being told by Khan that "she was a good sister who wanted to help them out," (id. at 275),
At trial, Paracha acknowledged making the self-incriminating statements detailed above, but maintained that key portions of them constituted false confessions made out of a combination of fear, intimidation, and exhaustion. (Tr. at 1058-59, 1067-74, 1093-95, 1106-09, 1168-1208, 1229-36, 1258-91, 1310, 1325-39.) Testifying in his own defense, Paracha admitted that he had indeed met with Khan and al Baluchi as described, and that he had taken some small steps toward fulfilling his agreement to help Khan enter the United States.
Paracha testified at trial that on the night of March 28, 2003, he had "panicked initially" when "asked . . . out of the blue if I knew a Majid Khan," (id. at 1241) — denying that he did, and going so far as to make up the "Adnan" story — because he knew that he had "done something wrong" by calling the INS for Khan, (id. at 1147-48; see also id. at 1131-36). When confronted with an indication that the agents already possessed specific information to the contrary, in the form of the question about Khan's driver's license, Paracha soon told them the truth: that he did know Khan and had agreed to help him but did not know that Khan was an al Qaeda member. Later that night, however, after "I had already told them the truth and I did not go home . . . [t]hat is when I started lying" by falsely suggesting he had suspicions that his father was involved with al Qaeda. (Id. at 1233.) Throughout his remaining interviews and proffer sessions, Paracha testified, he continued to lie to the Joint Taskforce agents — and to his own lawyer, (id. at 1231-32) — "because I thought that is what they wanted to hear," and because he hoped that by cooperating he would be allowed to return home to Pakistan, (id. at 1059; see also id. at 1072).
Thus, Paracha testified at trial that the al Qaeda scientist he described to agents before trial "does not exist," (id. at 1244; see also id. at 1270, 1308-09), and that he had lalbsolutely no[]" basis for the suggestion that Siddiqui would accept anthrax from Pakistan, which he offered to agents only because "that was what I thought they wanted to hear," (id. at 1327; see also id. at 1191-93). The supposed transactions and meetings between al Qaeda and his father "did not happen," (id. at 1272; see also id. at 1271-78, 1307-08, 1325-30), and in fact Paracha altered these false narratives on the fly in response to objections from the agents that significant details in his initial statements "didn't make any sense," (id. at 1277 (number and timing of transactions); see also id. at 1274 (length of time money left in bank account)).
According to Paracha's testimony, although Khan told Paracha that "we need more brothers like you" when defendant agreed to help Khan, Khan did not say anything about al Qaeda, (id. at 1257-58); Paracha later falsely described that conversation to the agents and claimed he knew that Khan and al Baluchi were al Qaeda members only because he felt "pressured" to say so, (id. at 1073). To substantiate his claim of feeling pressured during the March 2003 interviews, Paracha testified that his cell phone was taken away on the first night he was interviewed in order to prevent him from contacting his family, (id. at 1104-05,1116-18), that he was subjected to a strip search in the hotel room, (id. at 1126-27, 1148-50), and that he was threatened with arrest or jail if he invoked his right to counsel, (id. at 1311-13) all of which the government strenuously denied, (see id. at 393-94,526,706-08,832-35,1343-45, 1352-61).
Pursuant to the Court's prior rulings, Paracha's trial defense counsel read into the record stipulated testimony by Khan and al Baluchi, based on unclassified summaries of their statements given while in custody as provided by the government. (Id. at 1043-49; see also al Baluchi Stip., Doc. 101 Ex. 3; Khan Stip., Doc. 101 Ex. 4.) In relevant part, the parties stipulated that Khan would have given the following testimony as to the culpability of defendant and his father:
(Khan Stipulation at 1-3.) Khan also corroborated the details of the tasks given to defendant to assist Khan in obtaining travel documents. (Id.)
The stipulation of the parties regarding al Baluchi's testimony contained the following statements relevant to defendant:
(Al Baluchi Stipulation at 1-2.) Al Baluchi also offered exculpatory statements as to defendant's father, stating that "Saifullah Paracha was only a businessman who was sympathetic to the mujahidin," who was "unwittingly being used to assist in Al-Baluchis broader plans with Al Qaeda operative Majid Khan." "Because Saifullah had never been properly vetted," according to al Baluchi, "he was never tasked by Al Qaeda (i.e., KSM or Al-Baluchi) to do anything for them." On the other hand, al Baluchi believed that Saifullah Paracha "probably knew of al-Baluchis al Qaeda affiliation" at least by the time of KSM's arrest on March 1,2003, and even earlier defendant's father "likely knew that Al-Baluchi and KSM were associated with mujahidin and could be associated with the Taliban or al Qaeda." (Id. at 2-3.)
Following the procedure adopted by the Fourth Circuit in United States v. Moussaoui, 382 F.3d 453,480-81 (4th Cir. 2004), and this Court, these stipulations were presented to the jury with instructions "designed to give the jury a basis for evaluating the statements, but to leave to the jury the function of determining their credibility and what weight, if any, they are to be given." United States v. Paracha, No. 03-CR-1197, 2006 WL 12768, at *15 (S.D.N.Y. Jan. 3, 2006):
Id. The Court read these instructions to the jury immediately before defense counsel read the stipulations into the record and then again at the close of the trial in the charge to the jury. (Tr. at 1042-43, 1504-06.)
The jury convicted Paracha on all five counts on November 23, 2005. (Tr. at 1577-80.) In July 2006, the Court sentenced defendant to thirty years' imprisonment followed by five years of supervised release. (Judgment & Conviction, Doc. 88.)
Defendant appealed his conviction on various grounds, including this Court's failure to suppress his statements to law enforcement and the fruits of the search of his apartment, the sufficiency of the evidence, the admission of Kohlmann's testimony regarding al Qaeda, and Paracha's Sixth Amendment right to confront the witnesses against him. The United States Court of Appeals for the Second Circuit rejected each of those arguments and affirmed the judgment on June 19, 2008. United States v. Paracha, 313 F. App'x 347 (2d Cir. 2008).
In November 2008, defendant moved for a new trial pursuant to Fed. R. Crim. P. 33 on the basis of newly discovered evidence. Paracha's proffered evidence consisted of post-trial statements made by Khan, al Baluchi, and KSM in the course of Combatant Status Review Tribunals ("CSRTs") and other interviews with government agents at Guantanamo Bay, where those individuals were detained.
Defendant contends that the collective weight of this new evidence merits a new trial or at least a hearing to determine whether the government possesses any further exculpatory information.
Fed. R. Crim. P. 33(a) authorizes the Court to "vacate any judgment and grant a new trial if the interest of justice so requires." "By its terms, Rule 33 confers broad discretion upon a trial court to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice." United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). The authority to grant such relief is "broader . . . than [the discretion] to grant a motion for a judgment of acquittal pursuant to Fed. R. Crim. P. 29, where the truth of the prosecution's evidence must be assumed." Id. at 1414. On a Rule 33 motion, by contrast, the Court is not only "entitled to weigh the evidence and in so doing evaluate for itself the credibility of the witnesses," United States v. Triumph Capital Grp., Inc., 544 F.3d 149, 159 (2d Cir. 2008) (internal quotation omitted), but it is also obligated to do so: "the court must examine the entire case, take into account all facts and circumstances, and make an objective evaluation." United States v. Aguiar, 737 F.3d 251, 264 (2d Cir. 2013) (internal quotation omitted). Of course, in the interest of finality, the Court is constrained to exercise its Rule 33 authority "sparingly and in the most extraordinary circumstances" — which is to say, only when the Court concludes after reviewing the case that "letting a guilty verdict stand would be a manifest injustice." United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001) (internal quotation omitted).
As particularly relevant here, the text of Rule 33 "specifically contemplates that such motions may be made based on newly-discovered evidence," United States v. Siddiqi, 959 F.2d 1167, 1173 (2d Cir. 1992), and grants this category of motions the special solicitude of a three-year filing period extending beyond the general fourteen-day deadline. Though in all cases the avoidance of manifest injustice remains the "ultimate" criterion, United States v. Romano, 794 F.3d 317, 332 (2d Cir. 2015), in this context, the courts have developed that directive into a five-part test authorizing a new trial when
United States v. Forbes, 790 F.3d 403, 406-07 (2d Cir. 2015) (alteration in original) (internal quotation omitted).
Another way to articulate the fifth prong of this test is that the Court "must weigh whether or not there is in reality a `significant chance' that the disclosure would have induced a reasonable doubt in the minds of enough jurors to prevent a conviction." United States v. Zagari, 111 F.3d 307, 322 (2d Cir. 1997) (quoting United States v. Rosner, 516 F.2d 269, 273 (2d Cir. 1975)); see also United States v. Spencer, 4 F.3d 115, 118-19 (2d Cir. 1993); United States v. Wolfson, No. 00-CR-628, 2008 WL 1969730, at *1 (S.D.N.Y. May 5, 2008), aff'd, 642 F.3d 293 (2d Cir. 2011) (per curiam). Of the test's five elements, this "probability-of-acquittal" requirement is "the most difficult for the defendant to meet, and the most difficult for a court to evaluate," because lilt requires looking backwards and forwards." Alvarez v. United States, 808 F.Supp. 1066, 1094 (S.D.N.Y. 1992). That is, "the court must evaluate the new evidence, not just in and of itself, but in the light of the entire record made at the trial and on the motion"; "[t]he strength of the evidence presented at the trial is an important consideration" in this analysis. 3 C. Wright & A. Miller, Federal Practice and Procedure § 584 (4th ed. 2018). For these reasons, the crucial inquiry into the likely effect of newly discovered evidence "is committed to the sound discretion of the district court" that presided over the trial. United States v. Aponte-Vega, 230 F.3d 522, 525 (2d Cir. 2000) (per curiam); see also United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995).
The government does not dispute defendant's satisfaction of the first three requirements for the grant of a new trial. Because the statements at issue were made more than a year after Paracha's conviction they are plainly "newly discovered after trial."
The material portions of the new evidence "directly contradict the government's case" that defendant knowingly aided al Qaeda, rather than simply "discredit[ing] a government witness." United States v. Spencer, 4 F.3d 115, 119 (2d Cir. 1993) (quoting United States v. Sposato, 446 F.2d 779, 781 (2d Cir. 1971)). Indeed, none of the newly discovered evidence may be dismissed as mere impeachment material, of the sort that "will not ordinarily justify a new trial." United States v. Reyes, 49 F.3d 63, 68 (2d Cir. 1995); see also, e.g., United States v. Middlemiss, 217 F.3d 112, 122-23 (2d Cir. 2000).
The government nonetheless urges that "any arguably exculpatory portions" of the new evidence "are cumulative of the [al Baluchi] and Khan statements admitted at Paracha's trial" by the stipulation of the parties. (Gov't's Mem. at 25.) That is not a correct characterization of the majority of the new evidence presented by defendant.
The great majority of the newly discovered material statements fall into three categories, none of which can be deemed merely cumulative.
First, Majid Khan's new statements diverge substantially from his previously stipulated testimony as adapted from the government's unclassified summaries. Khan, recall, was the direct beneficiary of the alleged material support in this case: the prosecution argued that al Qaeda plotted to get Khan back into the United States. It was thus particularly significant that the stipulation offered at trial in place of Khan's live testimony contained no unambiguous assertion by Khan of Paracha's innocence. Instead, the jury heard Khan's decidedly equivocal testimony that "Khan assessed Uzair Paracha as being willing to help a fellow [Muslim at his father's request," that "Khan thought Uzair Paracha was a good person who was willing to help," and that although "Khan might have been interested in recruiting Uzair Paracha" for al Qaeda, "Khan would only give Uzair Paracha a 5-10% suitability assessment" to join the terrorist group, owing to defendant's moderate views. (Khan Stip. at 2.) Indeed, far from wholeheartedly exonerating Paracha, some passages of Khan's stipulated testimony — such as the assertion that "Majid Khan did not assess Uzair Paracha as being suitable for any other assistance to al Qaeda besides helping with Majid Khan's documents at the time" — could even be read as incriminating defendant. (Id. (emphases added).
The newly discovered statements from Khan paint an altogether different picture. In his 2007 CSRT, Khan made the explicit assertions that "UZAIR PARACHA is innocent; he is not a criminal," and that Khan "never told [Paracha] that I was al Qaeda." (Khan CSRT Tr., Doc. 101 Ex. 14 at 18-19.) Similarly, in a June 2007 interview in Guantanamo Bay with government agents, "Khan commented that he thought Uzair Paracha was innocent, but got 30 years" and that "Uzair Paracha did not do anything, went to trial and got 30 years."
Second, Paracha points to the "glaring absence" of references to defendant or his father from KSM's newly discovered statements. (Def.'s Reply Mem., Doc. 100 at 6.) In his 2007 CSRT and other interviews at Guantanamo Bay, the admitted "operational director" for al Qaeda openly confessed his responsibility for dozens of heinous crimes and terrorist plots, including Khan's gas station plot in which Paracha's expected support was allegedly designed to play a role. (KSM CSRT Tr., Doc. 101 Ex. 8 at 17-19; KSM Interviews, Doc. 101 Ex. 9 at 18-20.) In the course of these statements, KSM freely named al Qaeda members, including Majid Khan and his brother Mansour, and discussed at length the logistical difficulties involved in secreting an operative into the United States, "especially after 9/11." (KSM Interviews at 18-19.) Likewise, in a witness statement presented at al Baluchi's CSRT, KSM further discussed how he "moved money" to named al Qaeda operatives in order to support the group's attacks. (Al Baluchi CSRT Tr., Doc. 101 Ex. 11 at 30.)
These statements by KSM bear directly on issues of central relevance to the charges against defendant, both in general — securing passage to the United States for al Qaeda operatives, and financial transactions in support of the group's terrorist activity — and in particular — the gas station plot involving Majid Khan and the effort to facilitate Khan's return to the United States. Crucially, KSM nowhere mentions defendant or his father. From this new evidence, defendant could credibly ask the jury to infer Paracha's innocence and lack of involvement in the operations discussed.
As described above, the jury did hear some evidence — of varying degrees of persuasiveness — tending to exculpate defendant of knowing involvement with al Qaeda operations. But the absence of any reference to the Parachas in KSM's newly discovered statements, "Mather than being merely cumulative, [is] evidence of a different kind" from the testimony of Khan, al Baluchi, and defendant himself. United States v. Siddiqi, 959 F.2d 1167, 1173 (2d Cir. 1992).
Third, the newly discovered evidence contains statements by all three men professing that, contrary to the factual assumptions upon which this trial proceeded, Khan and al Baluchi are themselves not members of al Qaeda.
Regardless of whether that theory would prevail at trial, the several new statements asserting Khan and al Baluchi's non-membership in al Qaeda most certainly are not cumulative of trial testimony, because the parties stipulated to the opposite conclusion — that they were members of al Qaeda — at trial. (Tr. at 227.) See, e.g., United States v. Spencer, 4 F.3d 115, 119 (2d Cir. 1993) ("because the new evidence was the only evidence" on a certain point, "it was non-cumulative"); Siddiqi, 959 F.2d at 1173 (same).
One limited aspect of the newly proffered evidence is cumulative. Al Baluchi's stipulated trial testimony spoke directly to the question of defendant's knowledge with the statement that "Uzair Paracha was totally unwitting of Al-Baluchi's Al Qaeda affiliation, or of Al-Baluchi's intention to use Saifullah Paracha for the broader operational plan involving Majid Khan." (Al Baluchi Stip. at 1-2.) Al Baluchi's testimony went on to assert that "Uzair Paracha knows nothing about operations," that In'either Al-Baluchi nor Majid Khan indicated to Uzair Paracha at any time that they were mujahidin or Al Qaeda," and that defendant's father remained similarly ignorant during the time period in which defendant was charged to have conspired to aid the terrorist group. (Id. at 2.
Al Baluchi's newly discovered 2007 statements add little on this topic. His CSRT testimony does not even mention any member of the Paracha family, let alone address their culpability or lack thereof.
The combined weight of the newly discovered, material, non-cumulative statements, considered in conjunction with the quality of the proof at trial, leads the Court to the conclusion that defendants' new evidence would very likely "create a reasonable doubt that did not otherwise exist." United States v. Diaz, 922 F.2d 998, 1006 (2d Cir. 1990) (internal quotation omitted); see also United States v. Zagari, 111 F.3d 307, 322 (2d Cir. 1997) (the "court must weigh whether or not there is in reality a significant chance that the disclosure would have induced a reasonable doubt in the minds of enough jurors to prevent a conviction" (internal quotation omitted)). That is, mindful of the Rule 33 standards set forth above, and "despite the abstract sufficiency of the evidence to sustain the verdict," the Court finds that "the evidence preponderates sufficiently heavily against the verdict [such] that a serious miscarriage of justice may have occurred." United States v. Ferguson, 49 F.Supp.2d 321, 323 (S.D.N.Y. 1999) (alteration in original) (internal quotation omitted), aff'd, 246 F.3d 129 (2d Cir. 2001).
This is so because the new evidence bears directly on "the central question" at trial, United States v. Parkes, 497 F.3d 220, 233 (2d Cir. 2007) — whether defendant knowingly assisted al Qaeda — and strikes at "the core of the government's case," United States v. Williams, No. 10-CR-622, 2017 WL 5483744, at *6 (E.D.N.Y. Nov. 15, 2017), by undermining the three stipulations that set the stage for the government's presentation of its case to the jury. The prosecution's explicitly stated strategy at trial was to "embrace" the stipulations of testimony by Khan and al Baluchi — technically offered as part of defendant's case, although the unclassified summaries were themselves prepared and disclosed by the government after review by the Court pursuant to CIPA. (Tr. at 1473.) The reason the government was able to take this tack was that defendant stipulated, on the basis of the evidence available to him at that time, that Khan and al Baluchi were in fact members of al Qaeda and that the summaries offered by the government were accurate representations of what they would testify to if given the opportunity to appear at trial.
By extracting these concessions, the government was able to narrow considerably the field of dispute, and to focus the jury on the parallels between these stipulated statements and Paracha's pretrial confession — a confession that was "[t]he single most important fact you will learn during the course of this trial," according to the prosecution's opening statement. (Id. at 16.
The grant of a new trial in United States v. Brodwin, 292 F.Supp.2d 484 (S.D.N.Y. 2003), is instructive. In that case, the court weighed newly discovered evidence and found that it would probably result in an acquittal, reasoning as follows:
Id. at 495.
These two distinctions militating in favor of retrial apply equally to Paracha's case. If the newly discovered statements from KSM, Khan, and al Baluchi were introduced by the defense at a retrial, significant portions of the stipulated testimony introduced at trial would likely have be excluded or altered, and the government would be precluded from adopting its admitted trial strategy of hugging itself closely to Khan and al Baluchi's statements and interpreting those stipulations of testimony against Paracha. In the absence of the original stipulations, the trial would be substantially changed, because the government would be put to its proof — to show that these three men, and KSM in particular, were not just ignorant but actively deceptive in their newly discovered testimony, given at Guantanamo Bay, as to defendant's mens rea. The task of that wholesale impeachment would present a fine line indeed for the government to walk, inasmuch as its case at trial relied on the same witnesses' testimony to corroborate the factual basis of the government's allegations against Paracha. And if Paracha chose to contest the al Qaeda membership of Khan and al Baluchi themselves, that decision would impose an even more revolutionary change onto the shape of the trial though fraught, of course, with the factual and evidentiary issues posed by conflicting evidence of their guilt, which the government would surely contest, and on which the Court would likely need to conduct an analysis pursuant to CIPA. See United States v. Moussaoui, 382 F.3d 453, 480-82 (4th Cir. 2004) ("the compiling of substitutions [must] be an interactive process among the parties and the district court," in part because "the defense's ability to propose substitutions based on the language of the [. . .] summaries [of the unavailable witnesses' testimony] is not a license to mislead the jury").
In the context of one or more of these broader factual disputes, unencumbered by the limitations and strictures on the stipulated testimony at trial, the jury might very well place greater significance on certain existing deficiencies in the prosecution's case. In particular, the Court is troubled by a series of inconsistencies between the bank records offered by the prosecution and the aspects of Paracha's confession they were meant to validate. The government placed substantial weight on this evidence in summation, pronouncing it "completely ridiculous" to believe that Paracha "ma[d]e up an additional story about his father receiving al Qaeda money in 2002, a story that just happens to match the bank records found by the agents." (Tr. at 1410.) But in fact, as scrutinized above, the record evidence only very loosely tracked Paracha's pretrial narrative — matching neither the amounts of the purported transactions nor the details of their description.
In context, the money is no small matter. Besides fulfilling a necessary element of the first and third counts of Paracha's indictment, the alleged transactions purportedly verified in the bank records constituted essentially the only independent evidence supporting defendant's pretrial confessions in key areas. Although the prosecution presented ample evidence of the tasks Paracha intended to undertake to assist Khan — the vast majority of which he did not contest at trial — it possessed but little proof beyond his own words that he acted with the requisite knowledge and motive to help al Qaeda.
If defendant did not so broadly stipulate to major portions of the now-questionable case against him — including the notably tepid statement by the crucial witness Khan — then the jury would of necessity focus more closely on the strength of the prosecution's independent evidence.
Defendant's theory of the case would certainly better explain various outlandish and uncorroborated details of his statements, including speculation about anthrax and chemical weapons that appears untethered to any real-world plot
The Court is also mindful of the unique aspects of the record in this case, in which Khan and al Baluchi's testimony assumed an unusually weighty significance pursuant to the evidentiary compromise laid out in United States v. Moussaoui, 382 F.3d 453, where a court was to navigate between the Scylla of requiring the "government to produce witnesses where doing so threatens our national security" and the Charybdis of allowing "a trial to go forward where doing so would deprive Paracha of his right to present a meaningful defense." United States v. Paracha, No. 03-CR-1197, 2006 WL 12768, at *31 (S.D.N.Y. Jan. 3, 2006). Paracha made a reasonable choice, based on the information then available to him, to present the agreedupon unclassified summaries of statements in his case at trial. However, the newly discovered evidence shows that at least some of those stipulations did not reflect the extent of the exculpatory evidence that would ultimately be made known to him.
In sum, the newly discovered evidence of exculpatory statements from Khan, al Baluchi, and KSM would yield a very different trial for Uzair Paracha. In conjunction with the unique importance of the less favorable stipulations offered at trial and key weaknesses in the remaining corroborating evidence, the Court finds a "significant chance that the disclosure" of the new evidence "would have induced a reasonable doubt in the minds of enough jurors to prevent a conviction." United States v. Zagari, 111 F.3d 307, 322 (2d Cir. 1997) (internal quotation omitted).
Because the Court grants a new trial, defendant's alternative request for an evidentiary hearing on the motion is dismissed as moot. See, e.g., United States v. Stewart, 433 F.3d 273, 302 (2d Cir. 2006) (decision whether to hold a hearing on Rule 33 motion is committed to discretion of the district court).
The critical question in this case is now and has always been whether Paracha acted with knowledge that he was helping al Qaeda. The factfinder's burden is to judge the truth between the jumble of incriminating stories Paracha offered government agents in 2003, and defendant's theory of the case — that he knew Majid Khan but remained ignorant of Khan's al Qaeda affiliations, and that his contrary pretrial statements to the government were lies told out of fear and a misguided hope of cooperation.
Exercising the Court's "broad discretion to decide Rule 33 motions based upon its evaluation of the proof produced," United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995), in fealty to the judicial duty independently to "examine the entire case, take into account all facts and circumstances, and make an objective evaluation" of both the newly discovered evidence and the trial record, United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001), the Court concludes that the newly discovered material evidence would yield a fundamentally different trial and likely create a reasonable doubt favoring Paracha's theory of the case over the government's. In such circumstances, "when it appears that an injustice has been done," Rule 33 commands "that there is a need for a new trial in the interest of justice." United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992) (internal quotation omitted).
For the foregoing reasons, defendant's motion for a new trial is GRANTED.
Defendant also asserts in passing that the indictment must be dismissed because the evidence against him is tainted by its origin in the "outrageous government conduct" of the alleged torture of Khan and KSM, as suggested by the supplemental documents submitted in 2018. (4/2/18 Letter at 6-11.) Even assuming that the allegations of abuse are true and that the argument is properly raised at this juncture — see United States v. Umeh, 646 F. App'x 96, 98 n.1 (2d Cir. 2016) (declining to decide "whether Rule 33 is the proper vehicle for a post-conviction motion to dismiss the indictment") — it nonetheless fails on the merits. A due process claim based on outrageous government conduct generally requires "either coercion or violation of the defendant's person," United States v. Bout, 731 F.3d 233, 238 (2d Cir. 2013) (emphasis added) (quoting United States v. Al Kassar, 660 F.3d 108, 121 (2d Cir. 2011)), and Paracha concedes that even in such circumstances dismissal is "exceedingly rare," (4/2/18 Letter at 8). "[D]ismissal of an indictment following a conviction is an `extraordinary' remedy," United States v. Lombardozzi, 491 F.3d 61, 79 (2d Cir. 2007) (alteration in original) (quoting United States v. Casamento, 887 F.2d 1141, 1182 (2d Cir. 1989)), and Paracha cites no case extending such relief to a defendant on the basis of government mistreatment of a third party and not the defendant.
Last, defendant argues in his 2018 submissions that the supplemental evidence entitles him to suppression of "any government evidence that may have been derived from the torture to which KSM and Mr. Khan were subjected." (4/2/18 Letter at 5.) Insofar as the grant of a new trial will already necessitate further evidentiary rulings, as noted below, the Court declines to resolve that issue at this time.
(Id. at 2-3.)
