(English) 1-07-cr-00543-DLI, 135-main

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

vs. CASE NO. 3:07cr543/DLI

ABDUL KADIR, et. al.,

Defendant(s).

______________________________/

MOTION TO SEVER DEFENDANTS AND MOTION TO SUPPRESS EVIDENCE

INTRODUCTION

The Defendant, through undersigned counsel, respectfully moves this Honorable Court

for an Order that he be granted a severance and separate trial from his co-defendants in the

Indictment herein from the offenses charged against the other defendants or for such other relief

as justice may require, upon the grounds that the Defendant, Mr. Abdul Kadir, is prejudiced by

the joinder of defendants herein.

Mr. Kadir also request this Honorable Court to suppress all things seized pursuant to a

search warrant covering the following described premises: 38 River Estate Circular Road Diego,

Martin, Trinidad and Tobago, 95 Riverside Drive, Watooka Linden, Guyana, and also Mr.

Kadir‟s computer flash drive seized from Mr. Kadir‟s personal luggage after his arrest. Mr.

Kadir also request this Honorable Court to suppress all things seized pursuant to any warrantless

searches, more specifically Mr. Kadir‟s personal belongings seized upon his arrest in Trinidad.

SEVERANCE OF DEFENDANTS

Mr. Kadir has been indicted and charged with three other individuals with Conspiracy to

Attack Public Transportation Systems and other terrorist acts against the United States.

Case 1:07-cr-00543-DLI Document 135 Filed 10/29/09 of 14 PageID #: 763

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The relief sought is an Order severing the offenses charged against the Defendant, Abdul

Kadir, in the Indictment from the offenses charged against the other defendants and for and

Order granting the Defendant, Abdul Kadir, a separate trial. Because there are no factual

disputes, but merely legal disputes, an affidavit from defendant is not necessary.

Federal Rule of Criminal Procedure 14 provides:

Relief from Prejudicial Joinder. If it appears that a defendant or the government is

prejudiced by a joinder of offenses or of defendants in an indictment or by such joinder

for trial together, the Court may order an election or separate trials of counts, grant a

severance of defendants or provide whatever other relief justice requires.

Severance for prejudicial joinder under Rule 14 is within the discretionary power of the trial

court. U. S. v. Spinelli, 352 F.3d 48, 54 (2nd

Cir. 2003).

Severance is an appropriate remedy in cases where it is likely that a joint trial will result

in “substantial prejudice to the right of the defendants to a fair trial.” U.S. v. Cardascia, 951

F.2d 474, 484 (2nd

Cir. 1991); Burton v. United States, 391 U.S. 123, 131 n.6 (1968). The United

States Supreme Court has instructed that a district court should grant severance under Rule 14

“only if there is a serious risk that a joint trial would compromise a specific trial right of one of

the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.”

U.S. v. Basciano, 2007 WL 3124622 (E.D.N.Y. Oct. 23, 2007).

In order to prevail, the defendant must show not simply prejudice but substantial

prejudice. The United States Supreme Court in United States v. Zafiro, 506 U.S. 534, 539 (1993)

identified a non-exhaustive set of situations in which such a risk might occur:

Such a risk might occur when evidence that the jury should not consider against a

defendant and that would not be admissible if a defendant were tried alone is ad-


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mitted against a codefendant. For example, evidence of a codefendant‟s wrongdoing

in some circumstances erroneously could lead a jury to conclude that a defendant

was guilty. …

Id.; see also United States v. Yousef, 327 F.3d 56, 150 (2nd

Cir. 2003); and United States v.

Basciano, 2007 WL 3124622 E.D.N.Y. Oct. 23, 2007).

In the case at bar, Mr. Kadir‟s joinder with his co-defendant‟s substantially prejudice his

right to a fair trial because he believes it prevents the jury from making a reliable judgment about

his guilt or innocence. Mr. Kadir is alleged to have entered into the alleged conspiracy

approximately three months before the investigation was terminated by the arrest of the

defendants. Mr. Kadir‟s co-defendant‟s in this matter, specifically Mr. Defreitas and Mr. Nur,

have been alleged to have been involved in this alleged conspiracy a full eight months before Mr.

Kadir‟s allegedly entered into the conspiracy.

Certain acts that will be attributed to Mr. Kadir‟s co-defendants‟ occurred well before

Mr. Kadir is alleged to have joined the conspiracy and any evidence of wrongdoing, proven or

unproven, attributed to by Mr. Kadir‟s co-defendant‟s in and of itself will erroneously lead the

jury to conclude that Mr. Kadir is also guilty. The spillover effect is such that Mr. Kadir‟s right

to a fair trial is substantially prejudice.

Too often, in trials with multiple defendants, the jury loses sight of the evidence against

each of the defendants because of the length of the trial, the great amount of evidence, and the

complexity of the case, and as a result, the right of a defendant to have his case judged separately

is seriously prejudiced. Spinelli, 352 F.3d at 55. For the foregoing reasons, Mr. Kadir

respectfully request that the Court order the servance of Mr. Kadir from his co-defendants and

order a separate trial.


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MOTION TO SUPPRESS all Property belonging to Abdul Kadir

For the purposes of this section of the motion the following facts are relevant. They are

based on conversations with defendant Abdul Kadir, the discovery turned over by the

government and information and belief. Because there are no factual disputes, but merely legal

disputes, an affidavit from defendant is not necessary.

Abdul Kadir was en route from Trinidad to Venezuela on June 1, 2007, when, after the

plane had already begun taxying, Trinidadian officials stopped the aircraft and ordered Kadir to

deplane.

Kadir and his bags were taken to a custodial holding room where he waited several hours.

He saw two white men enter and speak to Trinidadian authorities. He was then told by a Sergeant

Barrington that he was to be taken to Police Central in Port of Spain, Trinidad.

At police headquarters he waited until approximately 8 p.m. to be seen by Assistant

Commissioner Charles Frederick, at which time he was formally arrested for conspiracy to

commit a terrorist act. A Trinidad-and-Tobago search warrant, permitting police to search the

premises of Khalid Hassan of No. 38 River Estate Circular Road Diego Martin, in relation to

Abdul Kadir, was issued on June 2, 2007.

Subsequent to his arrest, Kadir‟s immediate belongings, those he carried on the plane and

his bags in the hold, were searched and seized. His home in Guyana was also searched pursuant

to what appears to be a Guyanese search warrant.1

American police agents participated in the search, took control of boxes of property

recovered therein, and later obtained a search warrant, to be executed between July 5 and July

1 There appears to be two Guyanese search warrants: one dated June 3

rd, 2007, and executed on that date, (Ex. A);

the other dated June 10th

, 2007, and executed on that date. (Ex. B) Counsel is unsure why two search warrants were

needed for the same premises, but suspects that American agents, not satisfied with the first search, insisted

Guyanese officials search the home a second time, at which point they took part and wrote a lengthy index of what

was recovered therein. (Ex. C)


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15th

, 2007, in the United States to search the hard drives taken from defendant‟s computers. (Ex.

D)

Another arrest warrant, for reasons unknown, was issued against Kadir by Trinidad-and-

Tobago police on July 20, 2007, even though he had been in continuous custody in Trinidad

since June 1st, 2007. (Ex. E)

A U.S. complaint filed under seal on June 1, 2007, by Robert Addonizio, requested an

arrest warrant of Kadir in relation to the case. (Ex. F). Counsel does not have the arrest warrant

itself, and no further information about how or whether these were transmitted to Trinidadian

police prior to Kadir‟s arrest.

The arrest itself and all searches pursuant to it were done at the behest of the U.S.

government with the cooperation of either Trinidadian or Guyanese law enforcement. The

investigation in the case started in the U.S. when a government operative, Steven Francis, Aka

“the Source”, Aka, Annas, befriended lead-defendant, Russell Defreitas to begin looking for

ways to finance an alleged plot to blow up fuel tanks at Kennedy airport.

Mr. Kadir had never been investigated by Guyanese or Trinidadian police until those

forces were instructed to do so by U.S. police. American agents directly instructed foreign

police when to arrest Mr. Kadir, and what to seize with his arrest. They were present at the scene

of his arrest, when his property was searched and when his home was searched in Guyana.

One agent told Kadir while he was being flown to the United States to stand trial on

charges of terrorism that they found photos from his flash drive so incriminatory that “he would

not be able to ever see his family again”, and that “none of them could visit him in the United

States.”

Issues :


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1. When does the U.S. Constitution protect foreign nationals in foreign lands from illegal search

and seizure?

2. Was Kadir‟s arrest in Trinidad legal?

3. Were the subsequent searches legal?

a) the search of his property in Trinidad.

i. what he carried, on his person

ii. in his luggage,

iii. what was taken from the premises of Khalid Hassan, 38 River Estate Road Diego Martin.

(Ex. G)

b) the search of his home in Guyana,

c) the search of his computer hard drives.

LAW

The U.S. Constitution extends its protections against illegal search and seizure when

foreign law enforcement acts as agents of U.S. police.2

The U.S. Constitution, 4th

Amendment, protects American citizens from police excess in

stops and seizures to the extent that police must have probable cause to effectuate the stop and

arrest. While this protection is geared primarily for U.S. residents on American soil, in certain

circumstances where U.S. police organize and oversee arrests abroad, even if the person arrested

is not a U.S. citizen or permanent resident, 4th

Amendment protections still apply.

Pursuant to the joint-venture doctrine, where U.S. officials work hand-in-hand with

foreign police in arrests and seizures, courts have invoked the 4th

Amendment. U.S. v.

Ferguson, 508 F.Supp.2d 1, D.D.C., 2007)(“the exclusionary rule may be invoked if American

law enforcement officials substantially participated in the search or if the foreign officials

2 For simplicity sake, this memo will use the term “police” to refer to any and all law enforcement agents.


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conducting the search were actually acting as agents for their American counterparts.” United

States v. Behety, 32 F.3d 503, 510-11 (11th Cir.1994); see also United States v. Peterson, 812

F.2d 486, 490 (9th Cir.1987); United States v. Delaplane, 778 F.2d 570, 573 (10th Cir.1985);

United States v. Morrow, 537 F.2d 120, 139 (5th Cir.1976). This exception is typically referred

to as the Joint Venture Doctrine.)

To be applicable, the court must find that the participation of federal agents was so

substantial as to have converted the search into a joint venture. Stonehill v. United States, 405

F.2d 738, 743 (9th Cir.1968), cert. denied, 395 U.S. 960, 89 S.Ct. 2102, 23 L.Ed.2d 747 (1969);

see also United States v. Verdugo-Urquidez, 856 F.2d 1214, 1224-25 (9th Cir.1988) (discussing

the development of the joint venture doctrine), rev'd on other grounds, 494 U.S. 259, 110 S.Ct.

1056, 108 L.Ed.2d 222 (1990); U.S. v. Rosenthal, 793 F.2d at 1214, 1231 (11th

Cir. 1986).3

Police Action Here Was Clearly a Joint Venture

This terrorism investigation initiated in the United States on the hiring of a former

detainee, Stephen Francis. His job was to seek out potential terrorist threats by infiltrating

Moslem meeting centers. In exchange for his information he would receive a lesser sentence on

two pending criminal cases as well as a stipend from the government.

He reported to U.S. police and received funding from them and permission to travel when

needed. He tape recorded phone calls and real-time encounters on police instruction, and

ultimately traveled to Guyana to search out others potentially interested in the putative plot

developed by him and Russell Defreitas.

3 The Government may claim that the case of U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990), overrules any cases

holding that 4th

Amendment protection extends to non-nationals in foreign territories, however, cases cited above

post-date Verdugo-Urquidez, and many district courts continue to follow the joint-venture doctrine. All of the

following decisions post-date Verdugo, supra.: U.S. v. Castro, 175 F.Supp.2d 129, (DCPR, 2001); U.S. v. Barona,

56 F.3d 1087, 1091 (9th

Cir. 1995); U.S. v. Ferguson, 508 F.Supp.2d 1 (DDC, 2007); U.S. v. Marzook, 435

F.Supp.2d 708 (ND Ill. 2006). Also see U.S. v. Baboolal, 2006 WL 1674480, (E.D. Wisconsin, 2006) for that

court‟s discussion of joint-venture law post Verdugo.


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Guyanese and Trinidadian authorities played no role, or a minor role, in the investigation

until the day Kadir was arrested. Any actions taken by foreign police were at the behest of U.S.

police. This includes Kadir‟s arrest, the search of his belongings at the airport and ultimately his

home in Guyana. (For some reason, police conducted two searches of Kadir‟s home, presumably

because the first search was inadequate.)

In recognition of the full control U.S. police had over every phase of the mission, U.S.

agents secured a warrant for Kadir‟s arrest from the EDNY, and assumedly had it executed in

Trinidad. They may even have been part of the actual physical arrest and search at the airport or

police central.

All of the acts of foreign police were initiated by U.S. direction for the ultimate purpose

of extraditing the defendant to the U.S. where he would stand trial for violating U.S. law.

As a Joint Venture, with 4th

Amendment Applicability, the Stop Was Illegal

It‟s difficult to discern, based on the paperwork provided by the government, what basis

Trinidadian officials had to arrest Mr. Kadir; whether the U.S. warrant was transmitted to

Trinidad, and what if any preliminary sharing of information occurred, for example, how was the

warrant executed in Trinidad inter alia through international treaties, by U.S. police themselves,

by foreign police under U.S. supervision. The government must provide this material in order for

the court to determine on what basis Trinidad police arrested Mr. Kadir and to what extent the

U.S. was involved.

If Kadir‟s arrest occurred pursuant to the U.S. arrest warrant, counsel challenges the

sufficiency of the affidavit on which that warrant was based and the reliability and veracity of the

confidential informant, Stephen Francis (CS) who provided information to secure the warrant.

In order for a court to rely on representations made by a CS, police must demonstrate


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why they believe the information he provided to be reliable by including information that 1)

specified the informant‟s basis of knowledge, and 2) proved the informant‟s veracity. See

Spinelli v. U.S., 393 U.S. 410 (1969) and Aguilar v. Texas, 378 U.S. 108 (1964).

The only information provided by the affiant, Robert Addonizio, a detective from the

Joint Terrorism Task Force, relating to the CS is found in a footnote (Ex. D, p.4) which reads:

2. The government has been working with the Source since 2004. The Source was convicted on

federal drug trafficking and Rico charges in the Southern District of New York in 1996. The

Source was also convicted on drug trafficking charges in New York Supreme Court in 2003. His

sentence in that case is pending as part of his cooperation agreement with the government. In

addition to the expectation of a reduced sentence in exchange for his cooperation, the Source

also receives financial assistance. The Source has provided extremely credible information that

has been corroborated by consensual recordings, e-mails, financial documents, surveillance and

other records and information.

The statement that the Source has „provided extremely credible information‟ is

conclusory, and there is no concrete information on what that conclusion is based such as past-

arrests secured, recovery of guns or drugs, etc. While some of the taped conversations he

provided police purportedly corroborated some of his information, he did not tape all

conversations, particularly the key conversation when he met Kadir in his home when he alleges

Kadir made incriminating statements.

Counsel submits that information provided by the Source exaggerated and intentionally

misled police to believe more occurred than what in reality happened in order for the Source to

keep his employer, the government, interested.

The courts have held that unlike tips by “an identified bystander with no apparent motive

to falsify,” United States v. Rollins, 522 F.2d 160, 164 (2d Cir. 1975), tips by paid or criminal

informants are deserving of special scrutiny in probable cause determinations because of

concerns “that an informant has concocted his story while pretending to cooperate in order to

harass an innocent person or curry favor with” law enforcement. U.S. v. Wagner, 989 F.2d 69


10

(2nd

Cir. 1993). Information from professional informants raises questions about their veracity

and basis of knowledge, or in other words, from what sources they received their information.

The following are exaggerations or misstatements provided by Francis contained in the

affidavit in support of a search warrant for Kadir‟s two hard drives:

1. That Defreitas and “others in Guyana” recruited a confidential source from New York to join

the plot in August 2006. (AK-0299, Ex. D). No one in Guyana recruited Francis. Defreitas and

Francis met in the U.S. purportedly by happenstance. Kadir was never involved in the

development of the “plot” which allegedly began in 2004. He never even met Defreitas or

Francis until the winter of 2007.

2. That Defreitas and the Source made plans to send an individual to Trinidad to “recruit a

known member of a foreign terrorist organization to participate.” (AK-0300, Ex.D, p.5)

The person Francis refers to here, purportedly staged a coup attempt in Trinidad some 20-years

ago. No longer considered a “known terrorist” in his own country, he lives peaceably in Trinidad

without problem.

3. The affidavit exaggerates information and intentionally omits non-inculpatory facts.

It states that a “thumb drive” in Kadir‟s possession at the Trinidadian airport includes

documentation between Kadir and individuals in Iran. The fact that this correspondence related

merely to Kadir‟s planned attendance of an international conference and had nothing to do with

any alleged terrorist activity is not mentioned.

Counsel submits that the exaggerations and misstatements in the affidavit were integral

to the probable-cause finding and therefore asks the court order a Franks hearing. (Franks v.

Delaware, 438 U.S. 154 (1978).)

If the arrest of Kadir was invalid, based on false or exaggerated information, the immediate


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search of his person and belongings was illegal and should therefore be suppressed.4

Information from the „Thumb Drive‟ Must be Suppressed

A “thumb drive” was recovered from Kadir at the airport.5 This device, associated with

storing data from a computer, was seized and searched without a warrant. Counsel submits that

U.S. police should have secured a warrant prior to being permitted to investigate this device.6

Had they not secured a warrant, and no papers relating to this have been presented to counsel,

information secured from the thumb drive must be suppressed.

Further items belonging to Mr. Kadir were seized from a home not belonging to Kadir in

Trinidad pursuant to an apparent Trinidadian search warrant of that address. That warrant only

permitted police to seize Trinidad and Tobago Passports and documents which will afford

evidence as to the commission of an indictable offence namely conspiracy to commit a terrorist

act.” (Ex. G)

The seizure of property exceeded the designated limits of the search, and again, counsel

is unaware of what information Trinidadian police possessed authorizing them to conduct the

search. Because, as argued earlier, this was a joint-venture with U.S. police calling the shots,

any information provided to Trinidad police should be provided to counsel to determine if U.S.

police, had the search been conducted on U.S. soil, would have had the right to search the

property. In addition, U.S. agents could have acquired a warrant in the EDNY to search the

residence.7

4 Counsel here is not conceding that should the Court rule the arrest to have been made on probable cause, the items

seized are therefore legally admitted into evidence. Issues still remain as to whether a search warrant should have

been secured from either Trinidad or U.S. police to justify searching any bags. She awaits making further argument

from the Government, and will respond accordingly. 5 Although this is also listed as having been recovered in the 38 River Estate Road residence.

6 U.S. police obtained a search warrant to seize and search Mr. Kadir‟s hard drives. The same should have been done

before any search of the “thumb drive” occurred. 7 The Government cannot argue that securing such a warrant would be unenforceable in another country. If this were

the case, why did U.S. agents secure an arrest warrant, „unenforceable‟ in the same country.


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If the court finds that the search of the premises of Khalid Hassan of No. 38 River Estate

circular Road Diego Martin, was not based on probable cause, all of the items found inside

belonging to Mr. Kadir (see Ex. G) must be suppressed.

The Search of Mr. Kadir‟s home in Guyana

The search of Mr. Kadir‟s home appears to have been done pursuant to Guyanese search

warrants. (Ex. A, B) Counsel repeats her arguments from above. As in relation to all searches,

since all investigation was done on the behest of U.S. police, the court must know what

information was provided to foreign police to justify their search of the home.

Furthermore in this case, a second search of Mr. Kadir‟s home occurred on June 10,

2007, (Ex. B) some seven days after the first search. There was no additional information

provided that would have justified a second search or the further invasion of privacy caused to

Mr. Kadir‟s wife and family. (The home was left in a shambles, twice.)

The Search of Mr. Kadir‟s Hard Drives

The same arguments as above apply to this search. That is, if the initial searches or

searches of Kadir‟s home were illegal, then the drives should be suppressed. But even should the

court find the searches legal, counsel challenges the search warrant issued in relation to the hard

drives in that the scope of the search was unreasonable since no effort was made to limit the

search to files or materials only relating to potential terrorist activities. The authorization

presumed that information containing terrorist content would be found in the disks but failed to

delineate which files were appropriate to be searched. (Ex. D, AK 0340). As such the warrant

itself and the search were overly broad and should be suppressed.

Wherefore counsel requests the Court suppress all items belonging to defendant whether

seized from his person, residence, or baggage. Or in the alternative to compel the Government to


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provide documentation of the probable cause provided to foreign police justifying their stops and

searches or for hearings to determine the legality of such searches.

Respectfully submitted,

_____________________________ ,

KAFAHNI NKRUMAH Esq.

Counsel for Abdul Kadir


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INDEX OF EXHIBITS

A. Guyanese Search Warrant dated 6/3/07

B. Guyanese Search Warrant dated 6/10/07

C. List of what was recovered from Kadir‟s home in Guyana

D. Affidavit for search warrant to search Kadir‟s Hard Drives

E. Arrest Warrant for Kadir from Trinidad/Tobago dated 7/20/07

F. Complaint submitted to obtain Kadir arrest warrant, EDNY

G. Search Warrant from Trinidad authorizing search of Kahlid Hassan address.


(English) 1-07-cr-00543-DLI, 135-main

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