Federal District Court Opinions
U.S. v. KOUBRITI, (E.D.Mich. 2006) UNITED STATES OF
AMERICA, Plaintiff, v. KARIM KOUBRITI, Defendant. No.
01-CR-80778. United States District Court, E.D. Michigan,
Southern Division. June 21, 2006
OPINION AND ORDER REGARDING DEFENDANT’S MOTIONS TO DISMISS
GERALD ROSEN, District Judge
I. INTRODUCTION
This matter is presently before the Court on two motions
for dismissal of the Fourth Superseding Indictment filed by
Defendant Karim Koubriti: (1) Defendant’s July 26, 2005
“Motion to Dismiss Fourth Superseding Indictment on Due
Process Grounds,” and (2) Defendant’s July 28, 2005 “Motion
to Dismiss for Violation of the Double Jeopardy Clause of
the Fifth Amendment.” The Government has responded to both
Motions.
The Court heard oral argument on this matter on May 1,
2006. At the conclusion Page 2 of the May 1 hearing, the
Court ordered supplemental briefing from the parties
specifically addressing Defendant’s due process argument
and his allegations concerning the “taint” of the evidence
giving rise to his prosecution for mail fraud as a result
of the findings of prosecutorial misconduct in connection
with the prosecution of the Third Superseding Indictment.
The parties have complied with the Court’s directive for
supplementation of the record. Having reviewed and
considered the parties briefs and the oral arguments of
counsel, the Court is now prepared to rule on this matter.
This Opinion and Order sets forth the Court’s ruling.
II. PERTINENT FACTS
A. THE FOURTH SUPERSEDING INDICTMENT
Karim Koubriti is presently charged in a Fourth
Superseding Indictment with Conspiracy to Commit Mail
Fraud. The charges against Mr. Koubriti are predicated upon
a scheme to defraud Titan Insurance Company by filing a
false automobile insurance claim in the summer of 2001.
According to the indictment, Defendant Koubriti and his
co-defendant, Ahmed Hannan, falsely claimed to have been
physically injured in a July 5, 2001 motor vehicle accident
in Dearborn, Michigan.[fn1] Hannan claimed to have suffered
injury to his “back and left leg,” and Koubriti claimed
injury to his “back and neck.” The two men claimed to have
sought treatment for their injuries at Oakwood Hospital in
Dearborn, then purportedly treated with Dr. Nabil Metwally,
M.D. in Page 3 Farmington, Michigan and at Rudy Physical
Therapy in Dearborn.
The indictment further charges that Koubriti and Hannan
submitted to Titan Insurance Company (“Titan”) false claims
for lost wages and fictitious mileage expenses, and
submitted various false and fraudulent invoices and other
fraudulent documentation for physical therapy and household
replacement services which were never provided. In
particular, the indictment alleges that during the times
and dates on the claims for lost wages and on the invoices
reflecting physical therapy, Koubriti and Hannan were
employed or in driving school.
B. KOUBRITI’S TRIAL ON THE THIRD SUPERSEDING INDICTMENT
Koubriti was previously charged in a Third Superseding
Indictment with Conspiracy to Provide Material Support to
Terrorists and various document fraud offenses (the
“Terrorist Indictment.”). The allegations in this
indictment were very broad and ranged from providing money
to terrorist groups overseas to planning attacks on the
United States. One element of the alleged conspiracy was a
plan to commit fraud in order to both support terrorist
activities and to “to cause economic harm to U.S.
businesses.” [Terrorist Indictment, Count One,
§§ 9, 10(a)]. The indictment charged as one
of the “overt acts” of the conspiracy that Defendants
Koubriti and Hannan were involved in a traffic accident in
Dearborn, Michigan on July 5, 2001in Dearborn, Michigan.
Id. § 25.
Evidence of these general allegations was presented at
trial in April-May 2003 Page 4 through the testimony of
Youssef Hmimmsa. Hmimmsa testified regarding the
Defendants’ alleged involvement in “economic jihad.”
Hmimmsa testified that Hannan, Koubriti, and Farouk
Ali-Haimoud met with an unidentified Tunisian regarding how
to fake an automobile accident and defraud insurance
companies. 4/15/03 Trial Tr. pp. 187, 191-192. The
Government later introduced the testimony of Kathleen
Gleason, regional claims manager for Titan. Ms. Gleason
testified that Hannan and Koubriti submitted insurance
claims to Titan arising out of the July 5, 2001 auto
accident. Titan, however, denied the claims of both men
because the insurer believed that the claims were
fraudulent. Titan had discovered that the two men were
taking truck driving classes when they claimed to be too
injured to work and were attending classes when they were
supposed to have been receiving medical treatment. 4/25/03
Trial Tr. pp. 4330-4333.
The Government also introduced Titan’s records showing
claims were made for payment for physical therapy
treatments for Defendants Hannan and Koubriti, and also
showed that requests were made for household service
payments. According to the household service payment forms,
Ahmed El-Kattan performed services for Defendant Hannan,
and Farouk Ali-Haimoud performed services for Defendant
Koubriti. 4/23/03 Trial Tr. pp. 4073-4074. El-Kattan
testified, however, that he had performed no household
services for Mr. Hannan after his accident. Id. at pp.
4069-72.
In its closing argument, the Government stated that the
Defendants had committed insurance fraud, 5/19/03 Trial. Tr.
pp. 6030, 6033, and that the July 5, 2001 accident was
Page 5 part of the “jihad” — the conspiracy to
provide material support to terrorism — at least
implying that the fruits of the fraud would be used to
support terrorist activities. Id. at pp. 6046-47.
C. POST-TRIAL PROCEEDINGS
On June 3, 2003, the jury returned a verdict finding
Defendant Koubriti guilty on Counts One and Two of the
Third Superseding Indictment, i.e., Conspiracy to Provide
Material Support or Resources to Terrorists and Conspiracy
to Engage in Fraud and Misuse of Visas, Permits or other
Documents. Following the verdict, Defendant filed a Motion
for Judgment Notwithstanding the Verdict, or in the
Alternative, for New Trial (referred to herein as “Motion
for New Trial”). While Defendant’s Motion for New Trial was
pending, the Court was made aware of exculpatory evidence
which had not been disclosed to the Defendants —
including Defendant Koubriti — or the Court. The
Court conducted a full hearing on this and related matters
on December 12, 2003, and following the hearing, ordered a
complete file review by the Government of the case. The
United States Attorney General appointed a special counsel
to conduct this review. Following an exhaustive review,
spanning more than nine months and thousands of documents,
the Government filed a Response concurring in Defendant’s
Motion for New Trial in which it moved the Court to dismiss
Count One of the indictment — the material support
to terrorism charge upon which Koubriti was convicted
— without prejudice.
The Government’s Response to the New Trial Motion
comprehensively detailed Page 6 the results of its review
and disclosed numerous instances of nondisclosure of
material information to the defense and other instances of
prosecutorial failure to comply with its Brady and Giglio
obligations. Taking only a few instances, the review
disclosed that the CIA and Turkish National Police,
Intelligence Division had a different opinion of the
sketches in a day planner presented as evidence of
Defendants’ involvement in terrorist activities[fn2] than
that which the Government presented to the jury,
exculpatory evidence which was never shared with the
defense or the Court. The review further revealed that some
officials within the U.S. Air Force agreed with the defense
theory regarding a Hardened Aircraft Shelter, i.e., that it
was a map of the Middle East. This, too, was never
disclosed to the defense.
Nor was the fact disclosed that photos were requested and
obtained relating to a Day Planner sketch purporting to be a
map to, and of, the Queen Alia Hospital in Jordan.[fn3] It
was further not disclosed to the defense that the Las Vegas
FBI had a very different opinion regarding a Las Vegas
“casing tape” of the MGM Hotel/Casino and that the dialect
on the tape — Tunisian — was posing problems
for government interpreters, both Page 7 of which were
significant issues at trial.
The Government’s review also revealed that potentially
harmful impeachment information relating to the
Government’s primary witness on the terrorism charges,
Youssef Hmimmsa, and his virulent anti-American views had
not been disclosed to the defense or the Court. Finally,
the Government never disclosed to the defense or the Court
that it had used a convicted felon, Marwan Farhat, to
assist in the translation of Arabic audio tapes. The
correct translations of these tapes was also a significant
issue at trial.
After considering the Government’s Response, on September
2, 2004 the Court ordered that Count One of the Third
Superseding Indictment be dismissed without prejudice, and
ordered a new trial on Count Two.[fn4] However, rather than
pursuing a new trial on the remaining charge against
Defendant Koubriti in Third Superseding Indictment (the
document fraud conspiracy charged in Count Two), on
December 15, 2004, the Government obtained from the grand
jury the Fourth Superseding Indictment which alleges only
one count — the Mail Fraud conspiracy count
discussed above.[fn5]
Contending that his prosecution on the Fourth Superseding
Indictment violates double jeopardy and his due process
rights, Defendant now moves to dismiss the indictment.
Page 8
III. DISCUSSION
A. DOUBLE JEOPARDY
The Double Jeopardy Clause of the Fifth Amendment provides
that no person shall “be subject for the same offense to be
twice put in jeopardy.” U.S. Const., amend. V. However, the
Double Jeopardy Clause’s general prohibition against
successive prosecutions is not absolute. As the Supreme
Court noted in Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct.
285 (1988), “The Double Jeopardy Clause’s general
prohibition against successive prosecutions does not
prevent the government from retrying a defendant who
succeeds in getting his first conviction set aside, through
direct appeal or collateral attack, because of some error
in the proceedings leading to conviction.” Id. 488 US. at
38, 109 S.Ct. at 289.[fn6] Similarly, a guilty verdict by a
jury which is set aside by the district court on the
defendant’s motion for new trial does not trigger the
prohibitions of the Double Jeopardy Clause because original
jeopardy is not terminated.[fn7] United States v. Wood, 958
F.2d 963, 970 (10th Cir. 1992). As the court explained in
Wood,
A guilty verdict by a jury which is set aside by the
district court on a motion by the defendant does not
terminate jeopardy. The Supreme Court has indicated that
one of the interests underlying the continuing jeopardy
Page 9 principle is a “limited waiver,” Price [v.
Georgia], 398 U.S.[323,] 329 n. 4, 90 S.Ct. [1757,] 1761
n. 4 [(1970)], and this is particularly significant to the
present case. Defendant’s asserted double jeopardy claim
rests on his right not to be tried twice for the same
offense, yet Defendant asked for the new trial. Had the
district court granted a motion by Defendant for a
mistrial prior to the jury returning a verdict, the Double
Jeopardy Clause would not bar a retrial. United States v.
Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543
(1971) (plurality opinion) (“a motion by the defendant for
a mistrial is ordinarily assumed to remove any barrier
to reprosecution”). See also [United States v.] Scott, 437
U.S. [82,] 93, 98 S.Ct. [2187,] 2194 [(1978)]; United
States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 1079,
47 L.Ed.2d 267 (1976); United States v. Poe, 713 F.2d 579,
583 (10th Cir. 1983), cert. denied, 466 U.S. 936, 104
S.Ct. 1907, 80 L.Ed.2d 456 (1984). Further, had the
District Court declared a mistrial due to a “manifest
necessity” prior to the jury returning a verdict, the
Double Jeopardy Clause would not bar his retrial. See
Illinois v. Somerville, 410 U.S. 458, 462-63, 93 S.Ct.
1066, 1069-70, 35 L.Ed.2d 425 (1973); United States v.
Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824). In
the latter situation, the Double Jeopardy Clause would not
bar a retrial even if legally insufficient evidence was
presented at the first trial. Richardson [v. United
States], 468 U.S. [317,] 326, 104 S.Ct. [3081,] 3086
[(1984)]. We see no reason why the result should be any
different when the district court grants Defendant’s
motion for a new trial after the jury returns a verdict.
958 F.2d at 970-71. See also, United States v. Arache, 946
F.2d 129 (1st Cir. 1991), cert. denied, 503 U.S. 948 (1992)
(holding that double jeopardy did not bar retrial after the
grant of defendant’s motion for new trial where no finding
had been made that the evidence was legally insufficient to
support his conviction.)
Although this case is somewhat different in that the Court
did not grant a new trial on the material support to
terrorism conspiracy charged in Count One of the Third
Superseding Indictment but rather dismissed that charge,
without prejudice, the fact remains that Defendant Koubriti
asked for a new trial. Under the foregoing authorities no
Page 10 double jeopardy principles are implicated under
these circumstances.
However, Koubriti contends that his case should be
analyzed under the principles of Oregon v. Kennedy, 456
U.S. 667, 102 S.Ct. 2083 (1982). In Oregon v. Kennedy, the
Supreme Court carved out a narrow exception to the rule
that where the defendant moves for a mistrial, the Double
Jeopardy Clause is not a bar to a retrial. Under this
exception, only if the conduct giving rise to the mistrial
was prosecutorial or judicial conduct intended to provoke
or “goad” the defendant into moving for a mistrial will
double jeopardy bar a retrial.
In Oregon v. Kennedy, the defendant was charged and tried
for the theft of an oriental rug. At trial, the State’s
expert testified as to the value and identity of the
property involved. On cross-examination, the expert
acknowledged that he had once filed a criminal complaint
against Kennedy but explained that no action had been taken
on his complaint. On redirect, the trial court sustained a
number of objections to the prosecutor’s questions seeking
to establish the reasons why the witness had filed a
complaint against the defendant. After eliciting from the
witness that he had never done business with Kennedy, the
prosecutor asked: “Is that because he is a crook?” At which
point the court granted Kennedy’s motion for a mistrial.
On retrial, the court rejected Kennedy’s contention that
the Double Jeopardy Clause barred further prosecution of
him finding that it was not the intention of the prosecutor
in this case to cause a mistrial. Kennedy was convicted but
his conviction was Page 11 reversed by the Oregon Court of
Appeals which sustained the double jeopardy claim because
it found that the prosecutorial misconduct that had
occasioned the mistrial, even if not intended to cause a
mistrial, amounted to “overreaching.”
The Supreme Court reversed holding that where a defendant
in a criminal trial successfully moves for a mistrial, he
may invoke the bar of double jeopardy in a second effort to
try him only if the conduct giving rise to the successful
motion for a mistrial was prosecutorial or judicial conduct
intended to provoke the defendant into moving for a
mistrial. Since both of the courts below agreed that the
prosecutor did not intend her conduct to provoke Kennedy
into moving for a mistrial, the Court held that that is the
end of the matter for purposes of the Double Jeopardy
Clause.
Following the Supreme Court’s decision, appellate courts,
including the Sixth Circuit, have been very reluctant to
find the intent necessary to satisfy the Kennedy standard.
See, e.g., United States v. Thomas, 728 F.2d 313, 318 (6th
Cir. 1984) (no double jeopardy bar to retrial where the
Court’s “review of the record leads us to conclude that
none of the prosecutor’s behavior here will pass the
intentional-goadinginto-mistrial test of Oregon”); United
States v. Curry, 328 F.3d 970, 973 (8th Cir. 2003)
(district court’s ruling that retrial was not barred
following post-trial grant of defendant’s mid-trial motion
for mistrial upheld on the basis that, despite the
prosecutor’s withholding of material impeachment evidence
and improper comments during closing argument, these
actions were not an attempt to goad defendant into
requesting a mistrial); Page 12 United States v. Gonzalez,
248 F.3d 1201, 1204 (10th Cir. 2001) (government’s appeal
of the district court’s grant of defendant’s mistrial
motion not barred because the government’s intent in
introducing allegedly prejudicial evidence may have been to
obtain a conviction rather than a mistrial); United States
v. Strickland, 245 F.3d 368, 384 (4th Cir. 2001), cert.
denied, 534 U.S. 894 (2001) (government’s concealment of
discoverable materials held not intended to provoke
mistrial); Greyson v. Kellam, 937 F.2d 1409 (9th Cir. 1991)
(no double jeopardy bar to retrial where misconduct showed
the prosecutor’s desire to convict, and not an intent to
goad defendant into moving for mistrial).
As Judge Posner of the Seventh Circuit explained in
discussing Kennedy in United States v. Oseni, 996 F.2d 186
(7th Cir. 1993):
The requirement of intent is critical, and easily
misunderstood. The fact that the government blunders at
trial and the blunder precipitates a successful motion for
mistrial does not bar a retrial. Yet the blunder will
almost always be intentional — the product of a
deliberate action, not of a mere slip of the tongue. A
prosecutor who in closing argument comments improperly on
the defendant’s failure to have taken the stand, thus
precipitating a mistrial or a reversal on appeal, is no
doubt speaking deliberately, though his judgment may be
fogged by the heat of combat. But unless he is trying to
abort the trial, his misconduct will not bar a retrial.
It doesn’t even matter that he knows that he is acting
improperly, provided that his aim is to get a conviction.
The only relevant intent is intent to terminate the trial,
not intent to prevail at this trial by impermissible
means.
996 F.2d at 188 (citations omitted; emphasis added).
Accordingly, even if Koubriti’s trial had been aborted on
a motion for mistrial — Page 13 which it was not
— Koubriti cannot establish that the Brady/Giglio,
and other violations found to have occurred here were
undertaken with the intent to provoke a mistrial. Indeed,
Koubriti has not established any concern on the
prosecutor’s part over a potential acquittal. Rather, any
fair reading of the course of the trial and post-trial
proceedings which occurred in this case evince, if
anything, the over-zealousness and overreaching of the
prosecutor in an attempt to obtain a conviction of Koubriti
and his co-defendants at the trial; certainly there is
absolutely no evidence that the prosecutor was attempting
to goad Defendant into seeking a mistrial. Although the
Court certainly does not countenance the prosecutor’s
conduct in this case and, in fact, has expressed —
and continues to express — its abhorrence of this
conduct, the facts here simply do not provide a basis for
application of double jeopardy principles.
In the final analysis, Koubriti’s reliance on Kennedy is
misplaced because, as noted, Kennedy’s narrow exception
applies only in cases of motions for mistrial, not to
post-verdict motions for new trial. Koubriti cites to dicta
in the Second Circuit’s decision in United States v.
Wallach, 979 F.2d 912 (2nd Cir. 1992), cert. denied, 508
U.S. 939 (1993), for the proposition that “in cases where
the misconduct remains hidden until after a verdict is
returned and an acquittal is avoided by prosecutorial
misconduct, the same rationale [as that underlying Oregon
v. Kennedy’s mistrial ruling] should prevent retrial.” See
Defendant’s Brief in Support, pp. 3-4.
While the Second Circuit may appear to be willing to extend
the Kennedy Page 14 rationale to post-verdict
dismissals,[fn8] the Sixth Circuit — as well as
other circuits that have considered the issue — has
refused to do so. In United States v. Davis, 873 F.2d 900,
906 (6th Cir. 1989), cert. denied, 493 U.S. 923 (1989), the
Sixth Circuit explained that “Oregon is a speciman of what
we might call the `mistrial’ branch of double jeopardy
law,” and concluded that because “no mistrial was declared
at Mr. Davis’s trial [Davis’s conviction had been
overturned on appeal], Oregon and its relatives do not
apply here.” See also United States v. McAleer, 138 F.3d
852, 855-56 (10th Cir. 1998), cert. denied, 425 U.S. 854
(1998); United States v. Doyle, 121 F.3d 1078, 1086-87 (7th
Cir. 1997).
Because the Sixth Circuit has declined to extend Kennedy’s
prosecutorial misconduct rule to situations involving
post-conviction motions, Koubriti’s claim for double
jeopardy protection fails.
Furthermore, the fact that the Court dismissed the
conspiracy to provide material support to terrorists charge
rather than grant the defendant’s motion for new trial on
this charge does not change the result. An analogous
situation was presented in United States v. Davis, supra.
In that case, the defendant, a real estate developer, was
indicted, tried and convicted for mail fraud under the
theory that Davis had devised a scheme or artifice to
defraud citizens of their rights to honest and faithful
services from their public Page 15 officials. While his
appeal of his conviction was pending, the United States
Supreme Court decided McNally v. United States, 483 U.S.
350 (1987), holding that the federal mail fraud statute is
limited in scope to the protection of tangible property
rights and does not make it a crime to deprive citizens of
their intangible right to honest performance by public
officials.[fn9] In an unpublished per curiam opinion, the
Sixth Circuit reversed Davis’s conviction on the ground that
the indictment against him was defective under McNally. On
remand, the district court dismissed the indictment. Ten
days later, a superseding indictment was returned against
Davis, charging him with four counts of mail fraud based on
the same mailings purported to establish the dismissed
charge of the original indictment. Davis moved to dismiss
the superseding indictment for violation of the Double
Jeopardy Clause. Both the district court and the Sixth
Circuit found not double jeopardy bar to Davis’s
prosecution under superseding indictment following dismissal
of the original indictment.
Among the arguments Davis made in support of his double
jeopardy claim was an argument for application of Oregon v.
Kennedy to bar reprosecution in his case. The Sixth Circuit
rejected that argument out of hand explaining:
[I]n Oregon v. Kennedy, . . . jeopardy would have been
terminated, and a retrial would have been barred by the
Double Jeopardy Clause, had it been found as a fact that
the prosecutor was guilty of misconduct that was intended
to provoke the defendant into moving, successfully for a
mistrial. Page 16 Oregon is a specimen of what we might
call the “mistrial” branch of double jeopardy law; but no
mistrial was declared at Mr. Davis’s trial, and Oregon
and its relatives do not apply here. . . .
873 F.2d at 906 (citations omitted).
Davis makes clear that it matters not that a dismissal, as
opposed to a new trial on the charge in the original
indictment was obtained as a result of the defendant’s new
trial motion. What matters for purposes of application of
Oregon v. Kennedy is that there have been a motion for a
mistrial made and that the prosecutor have goaded the
defendant into moving for the mistrial. Neither of these
circumstances is present here.
The Court next evaluates the substantive double jeopardy
issues in this case in order to show that even absent an
Oregon v. Kennedy analysis, Defendant’s double jeopardy
motion fails on the merits.
B. EVEN IF KOUBRITI WERE ENTITLED TO RAISE A DOUBLE
JEOPARDY CLAIM, ON THE MERITS THAT CLAIM WOULD FAIL
Even if Koubriti had alleged a potentially viable double
jeopardy claim, that claim would fail on the merits. The
essence of a double jeopardy defense is that a defendant
may not twice be put in jeopardy on the same charges. The
test to determine whether two offenses are, in fact, the
same was enunciated by the Supreme Court in Blockburger v.
United States, 284 U.S. 299, 3304, 52 S.Ct. 180, 182
(1932):
The applicable rule is that where the same act or
transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine
whether these are two offenses or only one is whether each
provision requires proof of fact which the other does not.
A single act may be an offense against two statutes; and
if each statute requires proof of an Page 17 additional
fact which the other does not, an acquittal or conviction
under either statute does not exempt the defendant from
prosecution and punishment under the other.
Id. (citations omitted).
In a conspiracy case, it is the agreement to do a
particular, specific act which forms the nucleus of the
offense. See Braverman v. United States, 317 U.S. 49, 53,
63 S.Ct. 99, 101 (1942); United States v. Sinito, 723 F.2d
1250, 1256 (6th Cir. 1984), cert. denied 469 U.S. 817
(1984). Therefore, a determination of whether the
government can prosecute on more than one conspiracy must
rest upon whether there exists more than one agreement. Id.
To determine whether two conspiracy indictments arise from
a single agreement to do a specific act, the Sixth Circuit
applies a totality of circumstances test. United States v.
Sinito, supra; United States v. Benton, 852 F.2d 1456,
1463-1464 (6th Cir. 1988) cert. denied, 488 U.S. 993
(1988).[fn10] The test requires the trial court to consider
the elements of: (1) time; (2) persons acting as
co-conspirators; (3) the statutory offenses charged in the
indictments; (4) the overt acts charged by the government
or any other description of the offenses charged which
indicates the nature and scope of the activity which the
government sought to punish in each case; and (5) places
where the events alleged as part Page 18 of the conspiracy
took place. Sinito, 723 F.2d at 1256. Where several of
these factors between the conspiracies are different, the
conclusion follows that the alleged illegal conspiracies
are separate and distinct offenses. Id. at 1256-57.
Applying this test, the Court finds that the Third and
Fourth Superseding Indictments charge two separate and
distinct conspiracies. First, the Third Superseding
Indictment charged a violation occurring from February 1998
through January 29, 2003, a period of nearly five years. By
contrast, the mail fraud conspiracy of the Fourth
Superseding indictment spans a period of only 10 weeks,
from July 5, 2001 through September 17, 2001. Although the
mail fraud activities charged in the current indictment
include an overt act which was a part of the larger
conspiracy charged and tried under the Third Superseding
Indictment, it is beyond question that these activities
represented only a part of the much more extensive
terrorism support activities charged and tried under the
earlier indictment. As the Sixth Circuit observed in
Sinito, two separate conspiracies can exist even where the
time period in the first indictment completely subsumes the
time period charged in the second indictment. 723 F.2d at
1257. (“Time frames and personnel can overlap in separate
criminal agreements.” Id., quoting United States v. Inmon,
594 F.2d 352, 354 (3rd Cir.), cert. denied, 444 U.S. 859
(1979).)
Further, the number and identities of persons charged as
co-conspirators is different. The present indictment charges
only two defendants — Karim Koubriti and Ahmed
Hannan. The material support to terrorists count charged
five defendants and Page 19 other unnamed co-conspirators
with engaging in 21 separate overt acts; these overt acts
span the time period from October 2000 through November
2002. The only overt act relating to the currently charged
mail fraud conspiracy — the alleged automobile
accident of July 5, 2001 reflected in § 25 of the
Third Superseding Indictment — is not even charged
as an overt act in the Fourth Superseding Indictment. And,
to the extent that Defendant alleges that a double jeopardy
violation is established based on the fact that evidence
relating to the automobile accident, which forms the basis
of the present mail fraud conspiracy charge, was also part
of the evidence adduced in the prior trial, the “same
evidence” test has been explicitly rejected by the Supreme
Court. See United States v. Dixon, 509 U.S. 688 (1993); see
also United States v. Sinito, 723 F.2d at 1256 (noting that
“[i]n recent years courts have recognized the inherent
infirmities in applying the same evidence test to
conspiracy cases.”)
Although Koubriti and Hannan were alleged to have been
participants in the conspiracy to provide material support
to terrorists, it is well settled that “[t]he rule [against
double jeopardy] does not apply where there are two
distinct conspiracies, even though they may involve some of
the same participants.” Sinito, supra, 723 F.2d at 1257;
see also United States v. Lurz, 666 F.2d 69, 74 (4th Cir.
1981), cert. denied, 459 U.S. 843 (1982); United States v.
Papa, 533 F.2d 815, 821-22 (2nd Cir. 1976), cert. denied,
429 U.S. 961 (1976).
Next, while the statutory offenses in both indictments are
charged as conspiracies, Page 20 the objects, means,
methods, overt acts and, perhaps, more importantly, the
elements in each are distinctively different. The offense
of conspiracy to provide material support to terrorists as
charged in the Third Superseding Indictment required the
Government to prove (1) an agreement between two or more
individuals (2) to destroy specific property belonging to a
foreign government in violation of 18 U.S.C. § 956(b)
or destroy or damage a structure within the United States
in violation of 18 U.S.C. § 2332(b); (3) the
defendant’s knowing participation in the agreement; and (4)
an overt act toward the commission of one or more of the
dual objects of the conspiracy. By clear contrast, the mail
fraud conspiracy charged in the present indictment requires
that the Government prove that Koubriti, in concert with
co-defendant Hannan (1) having devised a scheme to defraud;
(2) conspired or agreed to execute that scheme; and that
(3) as part of the execution of that scheme, one or more
mailings utilizing the U.S. Postal Service or a private or
commercial interstate carrier occurred.
Additionally, as indicated above, 20 of the 21 overt acts
charged in the Third Indictment have nothing whatsoever to
do with the mail fraud charged in the Fourth Indictment.
Similarly, seven of the 24 overt acts charged in the
current indictment charge fraudulent mailings, none of
which are encompassed in the Third Indictment.
Finally, the locations of the two charged conspiracies are
different. The terrorist conspiracy in the Third
Superseding Indictment is alleged to have extended to a
number of foreign countries including Turkey, Jordan and
the Netherlands; and to include a Page 21 number of U.S.
locations — Chicago, Illinois; Greensboro, North
Carolina; and Dearborn, Detroit and Romulus, Michigan. In
contrast, the acts forming the basis of the mail fraud
conspiracy are alleged to have occurred entirely with the
cities of Dearborn and Farmington, Michigan.
The foregoing demonstrates that the application of the
Sinito “totality of the circumstances” factors calls for a
finding of separate distinct conspiracies having been
charged in the Third and Fourth Superseding Indictments. In
arguing for a finding of a single conspiracy, Defendant
Koubriti relies heavily on a case out of the Western
District of Michigan, United States v. Shepard, 89 F. Supp.
2d 884 (W.D. Mich. 1999), in which Judge Quist applied the
Sinito totality of circumstances test to two drug
conspiracies charged in two separate indictments and
determined that the conspiracy charges in the two
indictments arose out of a single drug conspiracy. Judge
Quist granted the defendant’s motion to dismiss on double
jeopardy grounds as to one count of the later indictment.
In so doing, however, Judge Quist was particularly
persuaded that there was only one conspiracy by the facts
that (1) both of the indictments alleged conspiracies that
began at roughly the same time and (2) both indictments
charged the very same object of the conspiracy —
possession with intent to distribute marijuana. 89 F. Supp.
2d at 888-889. No such broad similarities exist in this
case.
For all of the foregoing reasons, the Court finds that the
conspiracies charged in the Third and Fourth Superseding
Indictments are sufficiently separate and distinct as to
Page 22 constitute separate agreements. Accordingly,
Koubriti’s double jeopardy motion lacks merit.
For all of the reasons stated above, Defendant’s motion to
dismiss for violation of the double jeopardy clause will be
denied.
C. DEFENDANT’S MOTION TO DISMISS ON DUE PROCESS AND
RELATED GROUNDS IS SIMILARLY WITHOUT MERIT
Defendant has also filed a separate motion seeking
dismissal of the Fourth Superseding Indictment arguing that
because of “outrageous government conduct” in connection
with the Third Superseding Indictment, the Court should
dismiss the Fourth Superseding Indictment on due process
grounds or, alternatively, by invoking its inherent
supervisory power.
1. DUE PROCESS
A court may dismiss an indictment on due process grounds
when “the conduct of law enforcement agents is so
outrageous that due process principles would absolutely bar
the government from invoking judicial processes to obtain a
conviction. . . .” United States v. Russell, 411 U.S. 423,
431-32 (1973). Whether outrageous government misconduct
justifying dismissal on due process grounds exists also
turns on a totality of the circumstances test. United
States v. Tobias, 662 F.2d 381, 387 (5th Cir. 1981), cert.
denied, 457 U.S. 1108 (1982).
Defendant Koubriti argues that such “outrageous government
misconduct” is evidenced in this case by: Page 23
A. the allegations contained in Defendant’s Amended
Motion for Judgment Notwithstanding the Verdict, or in the
alternative for New Trial;
B. the information contained in the Government’s
Consolidated Response Concurring in Defendants’ Motion for
a New Trial and Government’s Motion to Dismiss Count One
without prejudice, and Memorandum in Support;
C. the information disclosed on June 29, 2004 on the
CD-ROM;
D. any undisclosed Brady and/or Giglio evidence or
material; and
E. yet to be disclosed evidence of government misconduct
which has been uncovered in any of the collateral
investigations being conducted by the Government.
[Defendant’s Due Process Motion to Dismiss, p. 2.][fn11]
However, all of this evidence pertains to the conduct of
the former prosecutors and the investigation into the
allegations forming the basis of the Third Superseding
Indictment which the Government has already stipulated to
dismissing. Furthermore, the present prosecutors were not
involved in the prosecution of the Third Superseding
Indictment. Importantly, there has been no showing that the
particular evidence which will be used by the Government in
its prosecution of the instant mail fraud charges was in
any way “tainted” by misconduct on the part of the prior
prosecution team.
At the May 1, 2006 hearing on this matter, defense counsel
identified only one Page 24 piece of evidence that was
arguably “tainted,” that being the FBI 302 documenting the
November 19, 2001 telephonic interview with Attorney Allen
Blatinkoff conducted by Special Agent Cheryl Crockett.
Blatinkoff had been retained by Defendants Koubriti and
Hannan on July 6, 2001 to represent them with regard to the
accident claim they filed with Titan Insurance
Company.[fn12] Defendant Koubriti’s position is that by
interviewing Page 25 Attorney Blatinkoff, the Government
invaded Koubriti’s attorney-client relationship with
Blatinkoff and, as such, Blatinkoff’s testimony is “tainted
evidence.”[fn13] Having reviewed the Blatinkoff FBI 302,
however, the Court finds no evidence of taint.
As an initial matter, the Court notes that the Sixth
Circuit has expressly held that evidence that a defendant
consulted with an attorney does not invade the
attorney-client relationship. See United States v. Tocco,
200 F.3d 401, 422-23 (6th Cir. 2000). In Tocco, the
defendant claimed that prosecutorial misconduct occurred
when the prosecution elicited testimony during trial from
various witnesses that he had consulted an attorney and
that he did so in the company of co-conspirators. The Sixth
Circuit found Tocco’s claim to be without merit: Page 26
[W]e find that the evidence of Tocco’s visit to
[Attorney] Bellanca’s law office — or evidence that
Tocco sought out or consulted the advice of an attorney
generally — simply does not invade the
attorney-client relationship, nor does such evidence
impinge on the exercise of Tocco’s constitutional right to
consult with an attorney.
200 F.3d at 422-23.
Furthermore, as is evident from the FBI 302 interview, no
client confidences were disclosed in Blatinkoff’s interview.
The bulk of the interview was spent on Blatinkoff informing
Agent Crockett of his reasons why he was not going to
represent Koubriti and Hannan. His reasons were not based
upon any statements they had given him or any legal advise
he had given to them, but rather on information he had
gleaned from media reports.
However, even assuming arguendo that an invasion of the
attorney-client relationship occurred by virtue of this
single interview of Mr. Blatinkoff,[fn14] since the
Government has affirmatively stated that it does not intend
to call Blatinkoff as a witness, Defendant cannot show that
he has been prejudiced by the interview. In United States
v. Valencia, 541 F.2d 618 (6th Cir. 1976) — one of
the cases that Defendant Koubriti himself relies upon
— the Sixth Circuit made clear that to obtain a
dismissal of an indictment, the defendant must show both an
invasion of the attorney-client relationship and that
information obtained by virtue of the Government’s
intrusion into the Page 27 relationship is used at trial.
The Valencia court explained:
We agree with the district court that it was improper for
the government to have intruded into an attorney-client
relationship by paying an attorney’s secretary for
information about his clients. If any convictions here
were affected by the taint of this highly irregular, and
we trust, unusual arrangement, we would not hesitate to
set aside the convictions.
However, we believe that no necessary inference of
prejudice with respect to appellants can be made on the
basis of the government’s intrusion into the privileged
relationship between attorney and client. The more recent
authority indicates that there must be a showing of
prejudice as well as a showing of an intrusion into the
privileged relationship. * * * [To make this showing]
appellants must demonstrate that specific evidence used in
the government’s case against appellants [at trial] was
obtained through Miss Reichard [the secretary]. . . .
The only evidence that should have been used to convict
appellants was information that the Government obtained
independently of and unrelated to Miss Reichard’s
disclosures. . . .
541 F.3d at 623 (citations omitted).
Since Defendant cannot show that he has been prejudiced by
the alleged intrusion upon his relationship with Attorney
Blatinkoff, his reliance upon the Blatinkoff interview as
support for his due process claim is misplaced.
Turning then to the other evidence from the investigations
concerning the Third Superseding Indictment that the
Government has proffered, as a threshold matter, the Court
notes that Defendant never alleged any prosecutorial
misconduct with respect to the evidence concerning the
insurance fraud claim in his Amended Motion for Judgment
Notwithstanding the Verdict, or in the alternative for New
Trial. Nor did the Government’s extensive post-trial
investigation reveal any such misconduct. Page 28 The
Court has now re-examined all of the Third Superseding
Indictment 302s on the insurance fraud claim submitted by
the Government and finds no evidence of taint in any of
them. Simply stated, the evidence does not establish that
the investigations leading to the present indictment arise
out of tainted government transgressions that “infected
every part of the investigation and [current] prosecution
of the defendant.” United States v. Marshank, 777 F. Supp.
1507, 1522 (N.D. Cal. 1991).
Defendant makes a “fruit of the poisonous tree” argument
claiming that the present case should be viewed as nothing
more than a mere continuation of the previous indictment
and prosecution which the Government conceded was so
infected that it stipulated to dismissal of the charges.In
the Court’s view, however, by having obtained a dismissal
of the terrorism indictment, Defendant has received all the
process that he is due as a result of the misconduct of the
prior prosecutors. The Court has already expressed —
both in this Opinion and in its previous opinion dismissing
the material support charges — its distress and
strong disapproval of the former prosecutors’ failure to
meet their professional and constitutional obligations to
the defense, the Court and the justice system. Nothing in
this Opinion is intended in any way to diminish the Court’s
condemnation of that conduct. But, the Court cannot, as a
result of that misconduct, simply overlook the serious
allegations of Defendant’s unlawful activities in the
Fourth Superseding Indictment. Because the Government
failed in its prosecutorial obligations to Defendant in one
case does not give Defendant a “free pass” as to other
allegations of Page 29 wrongdoing.
In sum, having failed to show that the evidence in support
of the Fourth Superseding Indictment is tainted, Defendant
has failed to establish that his due process rights were
violated by the latest indictment.
2. SUPERVISORY POWER
The power of a district court to dismiss a grand jury
indictment under the supervisory powers doctrine is premised
on the inherent ability of the federal courts to formulate
procedural rules not specifically required by the
Constitution or Congress to supervise the administration of
justice. United States v. Streebing, 987 F.2d 368 (6th Cir.
1993), cert. denied, 508 U.S. 961 (1993). However, while a
court may use its supervisory power to dismiss an
indictment, dismissal is, generally speaking, a disfavored
remedy. United States v. Rogers, 751 F.2d 1074 (9th Cir.
1985). In United States v. Smith, 687 F.2d 147 (6th Cir.
1982), cert. denied, 459 U.S. 1116 (1983), the Sixth
Circuit held that “[i]n order for this court to order
dismissal of an indictment as part of its supervisory
powers, there must be a showing of `demonstrated and
longstanding prosecutorial misconduct’ as well as a showing
of substantial `prejudice to the defendant.'” Id. at
152-53. To meet this standard, thus, Defendant Koubriti
must show that the earlier misconduct was not remedied, or
that there is some identifiable previously-tainted evidence
that the Government seeks to use against him in a trial on
the new charges. Koubriti cannot make this showing. Page
30
Here, the Third Superseding Indictment was voluntarily
dismissed in its entirety by the Government upon discovery
of significant failures of the original prosecution team to
fulfill its discovery obligations to the Court and to the
defense. A new and different prosecution team acknowledged
these failures. The Government’s self-imposed remedy was
not merely setting aside the verdicts but involved a
complete dismissal of the indictment. Under these
circumstances, the Court does not find that the “integrity
of the judicial process” and deterrence of improper conduct
would be furthered by dismissal of the current indictment.
This is especially true here where the proximate harm
occasioned by the misconduct has already been remedied by
the Government’s earlier dismissal of the
misconduct-tainted charges.
For all of these reasons, the Court does not find that the
extraordinary remedy of dismissal under the Court’s
supervisory power is justified.
CONCLUSION
For all of the foregoing reasons,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss
for Violation of the Double Jeopardy Clause is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss on
Due Process Grounds is DENIED.
IT IS FURTHER ORDERED Defendant’s blanket request that the
Court order the Government to disclose any “undisclosed
classified Brady and/or Giglio evidence or Page 31
material” and any “yet to be disclosed evidence of
government misconduct which has been uncovered in any of
the collateral investigations being conducted by the
Government” as to the conduct of the former prosecutors is
DENIED.
[fn1] Defendant Hannan pled guilty to the conspiracy charge
and has been sentenced and deported. He is, therefore, no
longer part of this case.
[fn2] The Day Planner contained crude sketches which the
Government maintained were operational terrorist casing
sketches of the American Air Force Base at Incerlik, Turkey
and of the Queen Alia Military Hospital in Amman, Jordan.
[fn3] In fact, on cross-examination by the defense,
witnesses at trial testified — at least by strong
implication — that no such photos were ever taken.
The review revealed that such photos not only were taken,
but were provided to the prosecutor prior to trial. This,
too, was not disclosed to the defense. The prosecutor and a
Government witness have recently been indicted on charges
related to this testimony. The Court, of course, neither
expresses nor intends any opinion as to the legal validity
of these charges.
[fn4] See United States v. Koubriti, 336 F. Supp. 2d 676
(E.D. Mich. 2004).
[fn5] The remaining count in the Third Superseding
Indictment (Count Two) was dismissed upon the filing of the
Fourth Superseding Indictment.
[fn6] By contrast, where the defendant’s conviction is
reversed or set aside based on a finding that the evidence
was legally insufficient to support the conviction, double
jeopardy bars retrial on the same charge. Burks v. United
States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150 (1978); Hudson
v. Louisiana, 450 U.S. 40, 42, 101 S.Ct. 970, 972 (1981).
[fn7] The concept of “continuing jeopardy” has application
where criminal proceedings against an accused have not run
their full course. Price v. Georgia, 398 U.S. 323, 326, 90
S.Ct. 1757, 1759 (1970).
[fn8] Even the Second Circuit has applied its extension of
Kennedy sparingly. See, United States v. Pavloyianis, 996
F.2d 1467, 1474 (2nd Cir. 1993) (retrial after conviction
not barred as a result of perjury by prosecution witness
because there was no evidence that prosecutorial misconduct
in allowing perjury, of which prosecution should have been
aware, was perpetrated with the specific objective of
avoiding an acquittal that the prosecution viewed as likely
at the time.)
[fn9] Following the Supreme Court’s McNally ruling,
Congress amended the mail fraud statute to incorporate the
intangible rights theory as part of the Anti-Drug Abuse Act
of 1988, 18 U.S.C. § 1346.
[fn10] The totality of the circumstances tests has been
applied by a number of circuits. See e.g., United States v.
MacDougall, 790 F.2d 1135, 1143 (4th Cir. 1986); United
States v. Thomas, 759 F.2d 659, 662 (8th Cir. 1985); United
States v. Castro, 629 F.2d 456 (7th Cir. 1980); United
States v. Marable, 578 F.2d 151 (5th Cir. 1978); United
States v. Mallah, 503 F.2d 971 (2nd Cir. 1974), cert.
denied, 420 U.S. 995 (1975).
[fn11] Defendant further contends that the Court should
require the Government to disclose the information
contained in paragraphs (d) and (e).
[fn12] The substance of the interview as memorialized by
Agent Crockett in the FBI 302 is as follows:
On November 19, 2001, Attorney Allen Blatinkoff was
interviewed via telephone by Special Agent Cheryl K.
Crockett. . . . After addressing the nature and purpose of
the interview, Blatinkoff made [] the following
statements:
On July 6, 2001, Allen Blatinkoff was retained by Karim
Koubriti and Ahamad [sic] Hannan to represent them in an
accident claim filed with the Titan Insurance Company on
July 5, 2001. Blatinkoff stated that Koubriti[] and Hannan
were referred to him by representatives of Rudy’s Physical
Therapy. Blatinkoff then stated that he has represented
other patients in the past that were patients of Rudy’s
Physical Therapy.
Blatinkoff further stated that his initial meeting with
Koubriti and Hannan was very brief, however, Blatinkoff
informed Koubriti and Hannan of the “No Fault” benefits
available to them as a result of the accident. According
to Blatinkoff, while awaiting for the initial payment
claims from the insurance company, Blatinkoff learned the
following facts which caused Blatinkoff to withdraw as
counsel for Koubriti and Hannan: Blatinkoff learned
through the media that his clients, Koubriti and Hannan
had been arrested for alleged ties involving the September
11, 2001 incident. According to Blatinkoff, with his
clients in police custody, they could not get the
necessary treatment that would enable Blatinkoff to
perfect a disability case. Blatinkoff further stated that
both Koubriti and Hannan ha[d] violated their
representation agreement with Blatinkoff. Blatinkoff’s
agreement calls for his clients to provide Blatinkoff with
current or change of address so that Blatinkoff can
contact them when necessary. Blatinkoff stated that
Koubriti and Hannan had provided him with an address of
1335 Riverside, Detroit, Michigan when they were actually
residing at 2653 Norman, Detroit, Michigan. Blatinkoff
concluded that Koubriti and Hannan were claiming not being
able to work but according to the media, they were
working at Sky Chef during the time frame that they were
alleging to have been disabled. Based on these facts,
Blatinkoff closed his file on both Koubriti and Hannan on
September 19, 2001.
[fn13] Defendant’s identification of this allegedly
“tainted” evidence led the Court to order the parties to
supplement the record by explaining what evidence from the
trial on the Third Superseding Indictment they anticipate
will be used at the trial on the Fourth Superseding
Indictment so that the Court could determine whether, in
fact, such evidence might be deemed tainted. Accordingly,
the parties filed supplemental briefs addressing this
issue. In addition, the Government has provided the Court
and the defense with copies of the FBI 302s of all of the
witnesses interviewed in connection with the allegations of
insurance fraud during the investigation of leading to the
Terrorism Indictment.
[fn14] The Government has stated in its Supplemental Brief
that it has not reinterviewed Blatinkoff in its
investigation leading up to the Fourth Superseding
Indictment. Page 1