HLF Defense Response to CMU Transfer Request
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION __________________________ UNITED STATES OF AMERICA v. SHUKRI ABU BAKER (2) MOHAMMAD EL-MEZAIN (3) GHASSAN ELASHI (4) MUFID ABDULQADER (7) § § § § § § § §
NO. 3:04-CR-240-P ECF
DEFENDANTS’ JOINT OPPOSITION TO GOVERNMENT’S MOTION TO VACATE COURT’S ORDER OF NOVEMBER 5, 2009, DIRECTING THAT DEFENDANTS REMAIN AT FCI SEAGOVILLE SHUKRI ABU BAKER, MOHAMMAD EL-MEZAIN, GHASSAN ELASHI AND MUFID ABDULQADER, respectfully ask the Court to deny the government’s motion to vacate the Order directing that they remain at FCI Seagoville – Detention Center (“Seagoville”) pending appeal in this matter. Dkt. No. 1432. As an initial matter, the government’s motion is wrong on the law. The government’s motion does not cite, nor even acknowledge, Fed. R. Crim. P. 38(b)(2), which is controlling authority and authorizes a district court “to recommend … that the defendant be confined near the place of the trial or appeal for a period reasonably necessary to permit the defendant to assist in preparing the appeal.” Indeed, Rule 38(b)(2) was the basis for the Court’s November 5, 2009, Order. The government’s factual allegations are equally spurious. Both the prosecution’s initial claim that none of defense counsel visited their clients in 2009, as well as its amended contention that there were only two visits since sentencing are demonstrably DEFENDANTS’ JOINT OPPOSITION TO GOVERNMENT MOTION TO VACATE ORDER DIRECTING THAT DEFENDANTS REMAIN AT FCI SEAGOVILLE ‐‐ Page 1
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false, as counsel have visited their clients at least twenty-one times in 2009 and six times since sentencing. Moreover, the government makes the specious and logically fallacious argument that the alleged infrequency of defense counsel visits during the interim process of preparation and certification of the record on appeal somehow proves that defense counsel will not have need of access to their clients once briefing begins. Furthermore, the government, either mistakenly or disingenuously, conflates two separate issues: (1) the need for counsel to confer with their clients with respect to the appeal; and (2) the need for counsel to review classified materials in the secure room in Dallas. The reason defense counsel asked the Court to order that the defendants stay in Dallas pending appeal was to limit travel costs by allowing out-of-state counsel to work on classified portions of the brief and visit their clients during the same visit, not for the purpose of sharing classified information with the defendants, which counsel cannot do. Finally, in its motion, the government asserts that Bureau of Prisons (“BOP”) requested that the prosecutors in this case seek vacation of this Court’s November 5, 2009, Order. This assertion is inconsistent with undersigned counsel’s communications with representatives of BOP and the U.S. Marshals Service (“USMS”), who indicated an intention to keep the defendants at Seagoville pending appeal, and never expressed any discomfort with that position. Defendants therefore move the Court to order the government to produce all communications and correspondence between the Department of Justice (“DOJ”) and BOP regarding the instant motion and defendants’ designation, confinement, and placement.
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I.
Fed. R. Crim. P. 38(b)(2) authorizes this Court to direct that the defendants remain near the place of trial pending appeal. At the May 27, 2009, sentencing proceeding, counsel for defendants asked this
Court to exercise its discretion under Fed. R. Crim. P. 38(b)(2) and recommend that defendants remain in a facility close to Dallas pending appeal. See Shukri Abu Baker Sentencing Transcript, May 27, 2009, at 58-59; Mohammad El-Mezain Sentencing Transcript, May 27, 2009, at 43.1 The Court granted those requests, and made the following recommendations to the Bureau of Prisons: “Defendant shall remain at FDC Seagoville or in the Dallas area pending appeal, if eligible.” Judgment in a Criminal Case, United States v. Abu Baker, Dkt. No. 1299, at 3 (May 29, 2009).2 The Court later affirmed that Mr. Abu Baker and the other individual defendants were to remain at Seagoville pending appeal in the November 5, 2009 Order (Dkt. No. 1395). Now, just as the compilation of the record on appeal is nearing completion, and after standing silent for more than nine months since entry of the judgments and more than four months since
1
The relevant portion of Mr. Abu Baker’s sentencing transcript provides: MS. HOLLANDER: Yes, Your Honor. We have two requests. One is pursuant to Rule 38, Your Honor can recommend that Mr. Abu Baker remain close by until the appeal, and in this case we particularly ask for that because, as you know, We are going to have to come to Dallas to work in our secure room for -- part of the appeal will involve classified evidence. And it would actually, since he is indigent, will save the government considerable money, too, if he can be in the same place so that we don't have to travel to two different places when we are working on the appeal. Since we are going to have to come to Dallas to do part of it, Rule 38 does provide that Your Honor can recommend to the Attorney General that he stay where he is, or if there is another facility close to Dallas during the pendency of the appeal.
2
The Court included this language in the judgments against all individual defendants. See Judgment in a Criminal Case, United States v. El-Mezain, Dkt. No. 1293, at 2 (May 29, 2009); Judgment in a Criminal Case, United States v. Elashi, Dkt. No. 1298, at 3 (May 29, 2009); Judgment in a Criminal Case, United States v. Abdulqader, Dkt. No. 1294, at 2 (May 29, 2009).
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entry of the November 5, 2009 order, the government seeks to vacate an order the sole purpose of which is to facilitate attorney-client consultation during the appellate process. The timing and the motivation are suspect. Fed. R. Crim. P. 38(b)(2) expressly authorizes the Court to recommend that the defendants remain at FCI Seagoville pending appeal: “If the defendant is not released pending appeal, the court may recommend to the Attorney General that the defendant be confined near the place of the trial or appeal for a period reasonably necessary to permit the defendant to assist in preparing the appeal.” The government’s motion fails to even mention this Rule. Instead, the government relies on the statute vesting BOP with authority to designate defendants’ place of imprisonment, and cases holding that a court may not usurp that authority. Motion to Vacate at 1-3. That statute is not relevant, as this Court has done nothing that would intrude upon BOP’s designation authority. In fact, with the exception of Mr. Abu Baker,3 the Court did not even make recommendations as to the designated place of imprisonment for the defendants, much less order BOP to designate specific places. Also, BOP has exercised its designation authority. The only issue is the timing of defendants’ transfer, a matter clearly within the purview of Rule 38(b)(2). Indeed, none of the cases the government cites address a court’s authority to order that a defendant remain close to the place of trial pending appeal. For example, Abdul3
With respect to Mr. Abu Baker, BOP must consider “any statement by the court that imposed the sentence… recommending a type of penal or correctional facility as appropriate” in making its designation decision. 18 U.S.C. § 3621(b)(4)(B); see also Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005) (BOP is required to consider the factors set forth in § 3621(b)—including the recommendations of the sentencing judge—in designating a person to a particular facility). Whether BOP complied with § 3621(b) in designating FCI Terre Haute as Mr. Abu Baker’s place of confinement is not the issue presently before the Court.
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Malik v. Hawk Sawyer addresses the BOP’s exclusive authority to designate a state prison as a place of federal detention under 18 U.S.C. § 3621(b). 403 F.3d 72 (2d Cir. 2005). The question before the Seventh Circuit in United States v. King was whether an inmate’s transfer from a federal correctional facility to a county jail following an alleged attempted escape started the speedy trial clock on the escape charges. 338 F.3d 794, 798 (7th Cir. 2003). In Miller v. Whitehead, the Eighth Circuit considered inmates’ challenge to a BOP determination they were ineligible for placement in a halfway house. 527 F.3d 752 (8th Cir. 2008). Finally, in United States v. King, the Fifth Circuit held that the district court did not err in not ordering that the defendant participate in drug treatment while incarcerated, given that the decision whether a prisoner receives treatment for substance abuse is left to the discretion of the BOP. 101 Fed. Appx. 958, 2004 WL 1399211 (5th Cir. 2004). Thus, the government has not cited to a single case to support its assertion that this Court’s order pursuant to Rule 38(b)(2) was improper. While BOP possesses sole discretion over a convicted defendant’s designation, both § 3621(b)(4)(B) and Rule 38(b)(2) preserve this Court’s discretion to recommend an appropriate facility or locale for confinement, especially during the pendency of the appeal when the place of confinement is integral to a defendant’s ability to aid in the preparation of his appeal. Although the case law interpreting Rule 38(b)(2) is sparse, “it is clear from the plain language of the Rule that it is within the Sentencing Court’s discretion to recommend that a defendant be housed at a facility near the place of trial to assist in the preparation of an appeal.” United States v. Smith, 826 F. Supp. 1282, 1283 (D. Kan. 1993).
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II.
The defendants pose none of the dangers the government inaccurately and gratuitously alleges in its motion. The only basis for BOP designating these defendants to a Communications
Management Unit (CMU) is their convictions for “material support” pursuant to 18 U.S.C. § 2339B, which, as this Court is aware, are different in nature from the vast majority of § 2339B “material support” convictions. The government has not produced any evidence that the defendants pose a danger or threat to anyone. As this Court knows from the many letters of support it received from community and family members during sentencing, these defendants are loving and dedicated family men, as well as generous community leaders, who contributed to their communities through counseling and involvement in religious, civic and educational events. Moreover, they remained out on bond with few restrictions, in full compliance, and without incident for the more than four years between indictment and the verdict at the second trial. If necessary, and at the appropriate time, the defendants will appeal their inappropriate designation to the CMU’s. But that designation is not at issue here. The only issue is this Court’s authority to order that the defendants stay at FDC Seagoville pending appeal. In that context, the government has not produced any evidence that during their time at FDC Seagoville the defendants have engaged in any of the conduct alleged in its motion. Thus, there is no basis for the government’s request that this Court vacate its November 2009 order. III. Defense counsel visited their clients at FDC Seagoville between June 1 and December 31, 2009. The government contends in its first motion that defense counsel did not visit any of the defendants during 2009. In its amended filing, however, the government claims to DEFENDANTS’ JOINT OPPOSITION TO GOVERNMENT MOTION TO VACATE ORDER DIRECTING THAT DEFENDANTS REMAIN AT FCI SEAGOVILLE ‐‐ Page 6
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have found records for only two visits by defense counsel between June 1, 2009 and December 31, 2009. Neither of these factual contentions is correct. Counsel for Shukri Abu Baker visited Seagoville six times in 2009, and both his attorneys have visited once in 2010; 4 counsel for Mohammed El-Mezain visited five times in 2009 and once in 2010;5 counsel for Ghassan Elashi visited four times in 2009;6 and counsel for Mufid Abdulqader visited her client five times in 2009, visited Shukri Abu Baker once in 2009 and provided multiple oral updates to Abdulqader, Abu Baker and El Mezain during visits to Seagoville to see other clients that coincided with the defendants’ family visiting hours.7 Because counsel for Mr. Abdulqader lives in Dallas, counsel for Abu Baker, El Mezain and Elashi have authorized her to visit all defendants. Each time a defense attorney visits Seagoville, he or she is required to present a photo I.D. and bar card, complete and sign an attorney visitation form, complete and sign a declaration that counsel is not bringing any contraband into the facility, sign and date a handwritten logbook and obtain a hand stamp for entry and exit. Counsel followed these
4
See Exhibit A, Declaration of Nancy Hollander (describing trips to Seagoville to visit with Mr. Abu Baker on March 4, 2009, May 26, 2009, and January 13, 2010); Exhibit B, Declaration of Theresa M. Duncan (describing trips to Seagoville to visit with Mr. Abu Baker on January 6, 2009, April 21, 2009, May 25, 2009, May 26, 2009, October 1, 2009, and January 13, 2010).
See Exhibit C, Declaration of Joshua Dratel (describing trips to Seagoville to visit with Mr. ElMezain on February 18, 2009, April 1, 2009, April 16, 2009, May 15, 2009, May 26, 2009 and January 11, 2010).
6
5
See Exhibit D, Declaration of Linda Moreno (describing trips to Seagoville to visit with Mr. Elashi on January 13, 2009, January 23, 2009, March 27, 2009 and May 26, 2009).
7
Exhibit E, Declaration of Marlo Caddedu (describing (1) trips to Seagoville to visit with Mr. Abdulqader on January 8, 2009, March 4, 2009, April 21, 2009, June 26, 2009 and August 13, 2009; (2) a joint visit with co-defendant Shukri Abu Baker on June 26, 2009; and (3) multiple discussions with Abdulqader, Abu Baker and El Mezain during visits to Seagoville for meetings with other clients).
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procedures for each and every visit. Either the Bureau of Prisons records are incomplete or counsel’s review of the records was insufficiently thorough. Neither deficiency is attributable to the defendants. The government contended in its Motion to Vacate that there was no record of any visits by defense counsel with the defendants in 2009. As discussed above, counsel for Abu Baker, El Mezain, Elashi and Abdulqader logged official visits with the clients no fewer than twenty-one (21) times in 2009, and three times in 2010 to date.8 Apparently, having discovered that its claim of no visits was in error, the government then filed a Supplement to its Motion seeking to limit the relevant period to between June 1, 2009 and December 31, 2009 and conceding that it had discovered records of two visits by counsel during the amended six month period. Even the government’s latest claim is inaccurate, however, since defense counsel together logged no fewer than three official visits during that time period and a total of six official visits with the defendants since June 1, 2009. As the Court is aware, since June 1, 2009 up until today, the only action on the appeal has been to compile the record on appeal. To date, the record on appeal has still not been certified and a briefing schedule has not yet issued. Even though the record has not been certified, counsel have still met no fewer than seven times with their clients in preparation for the appeal, not even counting the unofficial updates conveyed by counsel
8
In addition to the official visits by counsel, as discussed in her Declaration, counsel for Abdulqader provided oral updates to Abdulqader, Abu Baker and El Mezain no fewer than five to ten times over the course of 2009. These updates are not billed to the CJA. By updating the clients during the course of other visits, the defense has been able to keep the defendants apprised of the progress of the case while saving the government the cost of paying for official visits. The defendants should not be penalized for attempting to conserve resources in this fashion.
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for Abdulqader. That counsel have met with their clients seven times before even receiving the record on appeal negates the government’s arguments that counsel do not need to consult with their clients once the appellate process finally commences. Moreover, the record of counsels’ visits with the clients in preparation for sentencing is a good barometer of how important client consultations will be in the appellate process, once it finally begins. Eighteen (18) official visits to the defendants between January 1, 2009 and the date of sentencing can hardly be deemed insignificant. In its motion, the government also confuses clearly distinct issues, making the bizarre argument that because counsel cannot bring classified evidence into FDC Seagoville there is no reason for the defendants to remain there. The government knows full well that counsel requested that the defendants remain near Dallas in order to enable counsel to work on the classified portions of the appellate brief and visit their clients during the same trip to Dallas, thus reducing the cost of the appeal. In fact, that is precisely what Ms. Hollander said to the Court at sentencing: “We are going to have to come to Dallas to work in our secure room for -- part of the appeal will involve classified evidence. And it would actually, since he is indigent, will save the government considerable money, too, if he can be in the same place so that we don’t have to travel to two different places when we are working on the appeal.” Baker Sentencing Transcript, May 27, 2009, at 58-59. A defense attorney has an undeniable ethical obligation to consult with his or her client regarding issues to be raised on appeal. See United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000) (“[a] criminal defendant has a constitutional right to receive effective assistance of counsel on direct appeal”); Frazer v. South Carolina, 430 F.3d DEFENDANTS’ JOINT OPPOSITION TO GOVERNMENT MOTION TO VACATE ORDER DIRECTING THAT DEFENDANTS REMAIN AT FCI SEAGOVILLE ‐‐ Page 9
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696, 705 (4th Cir. 2005) (“[a]lthough counsel need not press particular issues of the defendant’s choosing, by implication counsel must consult with the defendant to identify whether there are any meritorious issues to appeal. [citation omitted] Indeed, a discussion with the defendant regarding a direct appeal and what issues to pursue (if any) is critical, as “multiplying assignments of error will dilute and weaken a good case and will not save a bad one.” [citation omitted]). If the defendants are moved now, counsel will have to travel to Dallas to prepare the classified portions of the brief and travel separately to the prison in another locale, which will (at least) double9 the costs to the government. IV. The government should produce to the Court and counsel for the defendants all communications and correspondence with BOP regarding defendants’ designation and placement in this case. In its motion, the government asserts that BOP requested that the prosecutors in this case seek vacation of this Court’s November 5, 2009 Order. Motion at 1. The government’s motion does not identify the BOP official who made this request; nor does it explain the communications between DOJ and BOP that gave rise to it. The government’s assertion that BOP desires to move the defendants prior to the completion of the appeal is inconsistent with undersigned counsel’s communications with representatives of BOP and USMS, who indicated an intention to keep the defendants at FDC Seagoville pending appeal, and never expressed discomfort with that position. Defendants therefore move the Court to order the government to produce to the Court and
9
Currently only counsel for Messrs. Abu Baker, El-Mezain, and Elashi need to travel to Dallas to visit their respective clients. If the defendants are moved, counsel for Mr. Abdulqader will also have to travel. In addition, Dallas is a hub for American Airlines, which keeps fares modest. Travel to less accessible destinations in order to visit the defendants will likely result in higher air fares for each trip.
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counsel for the defendants all communications and correspondence between DOJ and BOP regarding the instant motion and defendants’ designation, confinement, and placement. CONCLUSION Accordingly, for the foregoing reasons, defendants SHUKRI ABU BAKER, MOHAMMAD EL-MEZAIN, GHASSAN ELASHI AND MUFID ABDULQADER, respectfully ask the Court to deny the government’s motion to vacate the November 5, 2008, Order directing that they remain at FCI Seagoville pending appeal in this matter. Defendants also move the Court to order the government to produce all communications and correspondence between DOJ and BOP regarding the instant motion and defendants’ designation and placement. Respectfully submitted, /s/Theresa M. Duncan NANCY HOLLANDER New Mexico Bar Card No. 1185 Email: [email protected] THERESA M. DUNCAN New Mexico Bar Card No. 12444 Email: [email protected] FREEDMAN BOYD HOLLANDER GOLDBERG IVES & DUNCAN P.A. 20 First Plaza, Suite 700 Albuquerque, New Mexico 87102 Office: 505.842.9960 Fax: 505.842.0697 ATTORNEYS FOR DEFENDANT SHUKRI ABU BAKER (02) JOSHUA L. DRATEL New York Bar Card No. 1795954 AARON J. MYSLIWIEC New York Bar Card No. 4168670 Law Office Of Joshua L. Dratel, P.C. DEFENDANTS’ JOINT OPPOSITION TO GOVERNMENT MOTION TO VACATE ORDER DIRECTING THAT DEFENDANTS REMAIN AT FCI SEAGOVILLE ‐‐ Page 11
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2 Wall St. 3rd Floor New York, NY 10005 Office: 212.732.0707 Email: [email protected] ATTORNEYS FOR DEFENDANT MOHAMMAD EL-MEZAIN (03) LINDA MORENO Florida Bar 0112283 LINDA MORENO, P.A. P.O. Box 10985 Tampa, Fl 33679 Office: 813.247.4500 Email: [email protected] JOHN D. CLINE California Bar No. 237759 Law Offices of John D. Cline 5A Funston Avenue San Francisco, CA 94129 (415) 747-8287 (Telephone) (415) 524-8265 (Facsimile) [email protected] (Email) ATTORNEYS FOR DEFENDANT GHASSAN ELASHI (04) MARLO P. CADEDDU Texas Bar Card No. 24028839 LAW OFFICE OF MARLO P. CADEDDU, P.C. 3232 McKinney Avenue, Suite 700 Dallas, TX 75204 Office: 214.220.9000 Fax: 214.744.3015 Email: [email protected] ATTORNEY FOR DEFENDANT MUFID ABDULQADER (07)
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CERTIFICATE OF SERVICE I hereby certify that on March 29, 2010, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to all counsel of record. /s/ Theresa M. Duncan THERESA M. DUNCAN
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION __________________________ UNITED STATES OF AMERICA v. SHUKRI ABU BAKER (2) MOHAMMAD EL-MEZAIN (3) GHASSAN ELASHI (4) MUFID ABDULQADER (7) § § § § § § § §
NO. 3:04-CR-240-P ECF
DEFENDANTS’ JOINT OPPOSITION TO GOVERNMENT’S MOTION TO VACATE COURT’S ORDER OF NOVEMBER 5, 2009, DIRECTING THAT DEFENDANTS REMAIN AT FCI SEAGOVILLE SHUKRI ABU BAKER, MOHAMMAD EL-MEZAIN, GHASSAN ELASHI AND MUFID ABDULQADER, respectfully ask the Court to deny the government’s motion to vacate the Order directing that they remain at FCI Seagoville – Detention Center (“Seagoville”) pending appeal in this matter. Dkt. No. 1432. As an initial matter, the government’s motion is wrong on the law. The government’s motion does not cite, nor even acknowledge, Fed. R. Crim. P. 38(b)(2), which is controlling authority and authorizes a district court “to recommend … that the defendant be confined near the place of the trial or appeal for a period reasonably necessary to permit the defendant to assist in preparing the appeal.” Indeed, Rule 38(b)(2) was the basis for the Court’s November 5, 2009, Order. The government’s factual allegations are equally spurious. Both the prosecution’s initial claim that none of defense counsel visited their clients in 2009, as well as its amended contention that there were only two visits since sentencing are demonstrably DEFENDANTS’ JOINT OPPOSITION TO GOVERNMENT MOTION TO VACATE ORDER DIRECTING THAT DEFENDANTS REMAIN AT FCI SEAGOVILLE ‐‐ Page 1
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false, as counsel have visited their clients at least twenty-one times in 2009 and six times since sentencing. Moreover, the government makes the specious and logically fallacious argument that the alleged infrequency of defense counsel visits during the interim process of preparation and certification of the record on appeal somehow proves that defense counsel will not have need of access to their clients once briefing begins. Furthermore, the government, either mistakenly or disingenuously, conflates two separate issues: (1) the need for counsel to confer with their clients with respect to the appeal; and (2) the need for counsel to review classified materials in the secure room in Dallas. The reason defense counsel asked the Court to order that the defendants stay in Dallas pending appeal was to limit travel costs by allowing out-of-state counsel to work on classified portions of the brief and visit their clients during the same visit, not for the purpose of sharing classified information with the defendants, which counsel cannot do. Finally, in its motion, the government asserts that Bureau of Prisons (“BOP”) requested that the prosecutors in this case seek vacation of this Court’s November 5, 2009, Order. This assertion is inconsistent with undersigned counsel’s communications with representatives of BOP and the U.S. Marshals Service (“USMS”), who indicated an intention to keep the defendants at Seagoville pending appeal, and never expressed any discomfort with that position. Defendants therefore move the Court to order the government to produce all communications and correspondence between the Department of Justice (“DOJ”) and BOP regarding the instant motion and defendants’ designation, confinement, and placement.
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I.
Fed. R. Crim. P. 38(b)(2) authorizes this Court to direct that the defendants remain near the place of trial pending appeal. At the May 27, 2009, sentencing proceeding, counsel for defendants asked this
Court to exercise its discretion under Fed. R. Crim. P. 38(b)(2) and recommend that defendants remain in a facility close to Dallas pending appeal. See Shukri Abu Baker Sentencing Transcript, May 27, 2009, at 58-59; Mohammad El-Mezain Sentencing Transcript, May 27, 2009, at 43.1 The Court granted those requests, and made the following recommendations to the Bureau of Prisons: “Defendant shall remain at FDC Seagoville or in the Dallas area pending appeal, if eligible.” Judgment in a Criminal Case, United States v. Abu Baker, Dkt. No. 1299, at 3 (May 29, 2009).2 The Court later affirmed that Mr. Abu Baker and the other individual defendants were to remain at Seagoville pending appeal in the November 5, 2009 Order (Dkt. No. 1395). Now, just as the compilation of the record on appeal is nearing completion, and after standing silent for more than nine months since entry of the judgments and more than four months since
1
The relevant portion of Mr. Abu Baker’s sentencing transcript provides: MS. HOLLANDER: Yes, Your Honor. We have two requests. One is pursuant to Rule 38, Your Honor can recommend that Mr. Abu Baker remain close by until the appeal, and in this case we particularly ask for that because, as you know, We are going to have to come to Dallas to work in our secure room for -- part of the appeal will involve classified evidence. And it would actually, since he is indigent, will save the government considerable money, too, if he can be in the same place so that we don't have to travel to two different places when we are working on the appeal. Since we are going to have to come to Dallas to do part of it, Rule 38 does provide that Your Honor can recommend to the Attorney General that he stay where he is, or if there is another facility close to Dallas during the pendency of the appeal.
2
The Court included this language in the judgments against all individual defendants. See Judgment in a Criminal Case, United States v. El-Mezain, Dkt. No. 1293, at 2 (May 29, 2009); Judgment in a Criminal Case, United States v. Elashi, Dkt. No. 1298, at 3 (May 29, 2009); Judgment in a Criminal Case, United States v. Abdulqader, Dkt. No. 1294, at 2 (May 29, 2009).
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entry of the November 5, 2009 order, the government seeks to vacate an order the sole purpose of which is to facilitate attorney-client consultation during the appellate process. The timing and the motivation are suspect. Fed. R. Crim. P. 38(b)(2) expressly authorizes the Court to recommend that the defendants remain at FCI Seagoville pending appeal: “If the defendant is not released pending appeal, the court may recommend to the Attorney General that the defendant be confined near the place of the trial or appeal for a period reasonably necessary to permit the defendant to assist in preparing the appeal.” The government’s motion fails to even mention this Rule. Instead, the government relies on the statute vesting BOP with authority to designate defendants’ place of imprisonment, and cases holding that a court may not usurp that authority. Motion to Vacate at 1-3. That statute is not relevant, as this Court has done nothing that would intrude upon BOP’s designation authority. In fact, with the exception of Mr. Abu Baker,3 the Court did not even make recommendations as to the designated place of imprisonment for the defendants, much less order BOP to designate specific places. Also, BOP has exercised its designation authority. The only issue is the timing of defendants’ transfer, a matter clearly within the purview of Rule 38(b)(2). Indeed, none of the cases the government cites address a court’s authority to order that a defendant remain close to the place of trial pending appeal. For example, Abdul3
With respect to Mr. Abu Baker, BOP must consider “any statement by the court that imposed the sentence… recommending a type of penal or correctional facility as appropriate” in making its designation decision. 18 U.S.C. § 3621(b)(4)(B); see also Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005) (BOP is required to consider the factors set forth in § 3621(b)—including the recommendations of the sentencing judge—in designating a person to a particular facility). Whether BOP complied with § 3621(b) in designating FCI Terre Haute as Mr. Abu Baker’s place of confinement is not the issue presently before the Court.
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Malik v. Hawk Sawyer addresses the BOP’s exclusive authority to designate a state prison as a place of federal detention under 18 U.S.C. § 3621(b). 403 F.3d 72 (2d Cir. 2005). The question before the Seventh Circuit in United States v. King was whether an inmate’s transfer from a federal correctional facility to a county jail following an alleged attempted escape started the speedy trial clock on the escape charges. 338 F.3d 794, 798 (7th Cir. 2003). In Miller v. Whitehead, the Eighth Circuit considered inmates’ challenge to a BOP determination they were ineligible for placement in a halfway house. 527 F.3d 752 (8th Cir. 2008). Finally, in United States v. King, the Fifth Circuit held that the district court did not err in not ordering that the defendant participate in drug treatment while incarcerated, given that the decision whether a prisoner receives treatment for substance abuse is left to the discretion of the BOP. 101 Fed. Appx. 958, 2004 WL 1399211 (5th Cir. 2004). Thus, the government has not cited to a single case to support its assertion that this Court’s order pursuant to Rule 38(b)(2) was improper. While BOP possesses sole discretion over a convicted defendant’s designation, both § 3621(b)(4)(B) and Rule 38(b)(2) preserve this Court’s discretion to recommend an appropriate facility or locale for confinement, especially during the pendency of the appeal when the place of confinement is integral to a defendant’s ability to aid in the preparation of his appeal. Although the case law interpreting Rule 38(b)(2) is sparse, “it is clear from the plain language of the Rule that it is within the Sentencing Court’s discretion to recommend that a defendant be housed at a facility near the place of trial to assist in the preparation of an appeal.” United States v. Smith, 826 F. Supp. 1282, 1283 (D. Kan. 1993).
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II.
The defendants pose none of the dangers the government inaccurately and gratuitously alleges in its motion. The only basis for BOP designating these defendants to a Communications
Management Unit (CMU) is their convictions for “material support” pursuant to 18 U.S.C. § 2339B, which, as this Court is aware, are different in nature from the vast majority of § 2339B “material support” convictions. The government has not produced any evidence that the defendants pose a danger or threat to anyone. As this Court knows from the many letters of support it received from community and family members during sentencing, these defendants are loving and dedicated family men, as well as generous community leaders, who contributed to their communities through counseling and involvement in religious, civic and educational events. Moreover, they remained out on bond with few restrictions, in full compliance, and without incident for the more than four years between indictment and the verdict at the second trial. If necessary, and at the appropriate time, the defendants will appeal their inappropriate designation to the CMU’s. But that designation is not at issue here. The only issue is this Court’s authority to order that the defendants stay at FDC Seagoville pending appeal. In that context, the government has not produced any evidence that during their time at FDC Seagoville the defendants have engaged in any of the conduct alleged in its motion. Thus, there is no basis for the government’s request that this Court vacate its November 2009 order. III. Defense counsel visited their clients at FDC Seagoville between June 1 and December 31, 2009. The government contends in its first motion that defense counsel did not visit any of the defendants during 2009. In its amended filing, however, the government claims to DEFENDANTS’ JOINT OPPOSITION TO GOVERNMENT MOTION TO VACATE ORDER DIRECTING THAT DEFENDANTS REMAIN AT FCI SEAGOVILLE ‐‐ Page 6
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have found records for only two visits by defense counsel between June 1, 2009 and December 31, 2009. Neither of these factual contentions is correct. Counsel for Shukri Abu Baker visited Seagoville six times in 2009, and both his attorneys have visited once in 2010; 4 counsel for Mohammed El-Mezain visited five times in 2009 and once in 2010;5 counsel for Ghassan Elashi visited four times in 2009;6 and counsel for Mufid Abdulqader visited her client five times in 2009, visited Shukri Abu Baker once in 2009 and provided multiple oral updates to Abdulqader, Abu Baker and El Mezain during visits to Seagoville to see other clients that coincided with the defendants’ family visiting hours.7 Because counsel for Mr. Abdulqader lives in Dallas, counsel for Abu Baker, El Mezain and Elashi have authorized her to visit all defendants. Each time a defense attorney visits Seagoville, he or she is required to present a photo I.D. and bar card, complete and sign an attorney visitation form, complete and sign a declaration that counsel is not bringing any contraband into the facility, sign and date a handwritten logbook and obtain a hand stamp for entry and exit. Counsel followed these
4
See Exhibit A, Declaration of Nancy Hollander (describing trips to Seagoville to visit with Mr. Abu Baker on March 4, 2009, May 26, 2009, and January 13, 2010); Exhibit B, Declaration of Theresa M. Duncan (describing trips to Seagoville to visit with Mr. Abu Baker on January 6, 2009, April 21, 2009, May 25, 2009, May 26, 2009, October 1, 2009, and January 13, 2010).
See Exhibit C, Declaration of Joshua Dratel (describing trips to Seagoville to visit with Mr. ElMezain on February 18, 2009, April 1, 2009, April 16, 2009, May 15, 2009, May 26, 2009 and January 11, 2010).
6
5
See Exhibit D, Declaration of Linda Moreno (describing trips to Seagoville to visit with Mr. Elashi on January 13, 2009, January 23, 2009, March 27, 2009 and May 26, 2009).
7
Exhibit E, Declaration of Marlo Caddedu (describing (1) trips to Seagoville to visit with Mr. Abdulqader on January 8, 2009, March 4, 2009, April 21, 2009, June 26, 2009 and August 13, 2009; (2) a joint visit with co-defendant Shukri Abu Baker on June 26, 2009; and (3) multiple discussions with Abdulqader, Abu Baker and El Mezain during visits to Seagoville for meetings with other clients).
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procedures for each and every visit. Either the Bureau of Prisons records are incomplete or counsel’s review of the records was insufficiently thorough. Neither deficiency is attributable to the defendants. The government contended in its Motion to Vacate that there was no record of any visits by defense counsel with the defendants in 2009. As discussed above, counsel for Abu Baker, El Mezain, Elashi and Abdulqader logged official visits with the clients no fewer than twenty-one (21) times in 2009, and three times in 2010 to date.8 Apparently, having discovered that its claim of no visits was in error, the government then filed a Supplement to its Motion seeking to limit the relevant period to between June 1, 2009 and December 31, 2009 and conceding that it had discovered records of two visits by counsel during the amended six month period. Even the government’s latest claim is inaccurate, however, since defense counsel together logged no fewer than three official visits during that time period and a total of six official visits with the defendants since June 1, 2009. As the Court is aware, since June 1, 2009 up until today, the only action on the appeal has been to compile the record on appeal. To date, the record on appeal has still not been certified and a briefing schedule has not yet issued. Even though the record has not been certified, counsel have still met no fewer than seven times with their clients in preparation for the appeal, not even counting the unofficial updates conveyed by counsel
8
In addition to the official visits by counsel, as discussed in her Declaration, counsel for Abdulqader provided oral updates to Abdulqader, Abu Baker and El Mezain no fewer than five to ten times over the course of 2009. These updates are not billed to the CJA. By updating the clients during the course of other visits, the defense has been able to keep the defendants apprised of the progress of the case while saving the government the cost of paying for official visits. The defendants should not be penalized for attempting to conserve resources in this fashion.
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for Abdulqader. That counsel have met with their clients seven times before even receiving the record on appeal negates the government’s arguments that counsel do not need to consult with their clients once the appellate process finally commences. Moreover, the record of counsels’ visits with the clients in preparation for sentencing is a good barometer of how important client consultations will be in the appellate process, once it finally begins. Eighteen (18) official visits to the defendants between January 1, 2009 and the date of sentencing can hardly be deemed insignificant. In its motion, the government also confuses clearly distinct issues, making the bizarre argument that because counsel cannot bring classified evidence into FDC Seagoville there is no reason for the defendants to remain there. The government knows full well that counsel requested that the defendants remain near Dallas in order to enable counsel to work on the classified portions of the appellate brief and visit their clients during the same trip to Dallas, thus reducing the cost of the appeal. In fact, that is precisely what Ms. Hollander said to the Court at sentencing: “We are going to have to come to Dallas to work in our secure room for -- part of the appeal will involve classified evidence. And it would actually, since he is indigent, will save the government considerable money, too, if he can be in the same place so that we don’t have to travel to two different places when we are working on the appeal.” Baker Sentencing Transcript, May 27, 2009, at 58-59. A defense attorney has an undeniable ethical obligation to consult with his or her client regarding issues to be raised on appeal. See United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000) (“[a] criminal defendant has a constitutional right to receive effective assistance of counsel on direct appeal”); Frazer v. South Carolina, 430 F.3d DEFENDANTS’ JOINT OPPOSITION TO GOVERNMENT MOTION TO VACATE ORDER DIRECTING THAT DEFENDANTS REMAIN AT FCI SEAGOVILLE ‐‐ Page 9
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696, 705 (4th Cir. 2005) (“[a]lthough counsel need not press particular issues of the defendant’s choosing, by implication counsel must consult with the defendant to identify whether there are any meritorious issues to appeal. [citation omitted] Indeed, a discussion with the defendant regarding a direct appeal and what issues to pursue (if any) is critical, as “multiplying assignments of error will dilute and weaken a good case and will not save a bad one.” [citation omitted]). If the defendants are moved now, counsel will have to travel to Dallas to prepare the classified portions of the brief and travel separately to the prison in another locale, which will (at least) double9 the costs to the government. IV. The government should produce to the Court and counsel for the defendants all communications and correspondence with BOP regarding defendants’ designation and placement in this case. In its motion, the government asserts that BOP requested that the prosecutors in this case seek vacation of this Court’s November 5, 2009 Order. Motion at 1. The government’s motion does not identify the BOP official who made this request; nor does it explain the communications between DOJ and BOP that gave rise to it. The government’s assertion that BOP desires to move the defendants prior to the completion of the appeal is inconsistent with undersigned counsel’s communications with representatives of BOP and USMS, who indicated an intention to keep the defendants at FDC Seagoville pending appeal, and never expressed discomfort with that position. Defendants therefore move the Court to order the government to produce to the Court and
9
Currently only counsel for Messrs. Abu Baker, El-Mezain, and Elashi need to travel to Dallas to visit their respective clients. If the defendants are moved, counsel for Mr. Abdulqader will also have to travel. In addition, Dallas is a hub for American Airlines, which keeps fares modest. Travel to less accessible destinations in order to visit the defendants will likely result in higher air fares for each trip.
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counsel for the defendants all communications and correspondence between DOJ and BOP regarding the instant motion and defendants’ designation, confinement, and placement. CONCLUSION Accordingly, for the foregoing reasons, defendants SHUKRI ABU BAKER, MOHAMMAD EL-MEZAIN, GHASSAN ELASHI AND MUFID ABDULQADER, respectfully ask the Court to deny the government’s motion to vacate the November 5, 2008, Order directing that they remain at FCI Seagoville pending appeal in this matter. Defendants also move the Court to order the government to produce all communications and correspondence between DOJ and BOP regarding the instant motion and defendants’ designation and placement. Respectfully submitted, /s/Theresa M. Duncan NANCY HOLLANDER New Mexico Bar Card No. 1185 Email: [email protected] THERESA M. DUNCAN New Mexico Bar Card No. 12444 Email: [email protected] FREEDMAN BOYD HOLLANDER GOLDBERG IVES & DUNCAN P.A. 20 First Plaza, Suite 700 Albuquerque, New Mexico 87102 Office: 505.842.9960 Fax: 505.842.0697 ATTORNEYS FOR DEFENDANT SHUKRI ABU BAKER (02) JOSHUA L. DRATEL New York Bar Card No. 1795954 AARON J. MYSLIWIEC New York Bar Card No. 4168670 Law Office Of Joshua L. Dratel, P.C. DEFENDANTS’ JOINT OPPOSITION TO GOVERNMENT MOTION TO VACATE ORDER DIRECTING THAT DEFENDANTS REMAIN AT FCI SEAGOVILLE ‐‐ Page 11
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2 Wall St. 3rd Floor New York, NY 10005 Office: 212.732.0707 Email: [email protected] ATTORNEYS FOR DEFENDANT MOHAMMAD EL-MEZAIN (03) LINDA MORENO Florida Bar 0112283 LINDA MORENO, P.A. P.O. Box 10985 Tampa, Fl 33679 Office: 813.247.4500 Email: [email protected] JOHN D. CLINE California Bar No. 237759 Law Offices of John D. Cline 5A Funston Avenue San Francisco, CA 94129 (415) 747-8287 (Telephone) (415) 524-8265 (Facsimile) [email protected] (Email) ATTORNEYS FOR DEFENDANT GHASSAN ELASHI (04) MARLO P. CADEDDU Texas Bar Card No. 24028839 LAW OFFICE OF MARLO P. CADEDDU, P.C. 3232 McKinney Avenue, Suite 700 Dallas, TX 75204 Office: 214.220.9000 Fax: 214.744.3015 Email: [email protected] ATTORNEY FOR DEFENDANT MUFID ABDULQADER (07)
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CERTIFICATE OF SERVICE I hereby certify that on March 29, 2010, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to all counsel of record. /s/ Theresa M. Duncan THERESA M. DUNCAN
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