United States v. Al Farekh ( 2020 )

18-943-cr
United States v. Al Farekh
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2019
No. 18-943-cr
UNITED STATES OF AMERICA,
Appellee,
v.
MUHANAD MAHMOUD AL FAREKH,
Defendant-Appellant,
On Appeal from the United States District Court
for the Eastern District of New York
ARGUED: DECEMBER 12, 2019
DECIDED: APRIL 16, 2020
Before: CABRANES, LOHIER, Circuit Judges, and REISS, Judge. *
Judge Christina Reiss, of the United States District Court for the District of
*
Vermont, sitting by designation.
Defendant-Appellant Muhanad Mahmoud Al-Farekh (“Al-
Farekh”), a U.S. citizen who traveled to Pakistan to join al-Qaeda and
wage violent jihad against the United States, appeals from a judgment
of the U.S. District Court for the Eastern District of New York (Brian
M. Cogan, Judge) convicting him, following a jury trial, of, among other
things, using explosives, conspiring to murder U.S. nationals,
conspiring to use a weapon of mass destruction, conspiring to bomb a
U.S. government facility, and providing material support to terrorists.
On appeal, Al-Farekh raises a number of challenges. We address
three of those challenges here: (1) whether a district court abuses its
discretion where it denies a defense counsel with the appropriate
security clearance access to motions filed by the Government ex parte
pursuant to section 4 of the Classified Information Procedures Act
(“CIPA”); (2) whether a custodial interrogation that takes place
overseas over a period of several weeks and involves the display of
hundreds of photographs as part of a foreign country’s
counterterrorism investigation is unduly suggestive, thereby
rendering inadmissible an out-of-court photo identification of the
defendant; and (3) whether a district court abuses its discretion when
it limits the cross-examination of a fingerprint examiner to preclude
references to a fingerprint misidentification in a wholly unrelated
case—i.e., the Brandon Mayfield incident.
We answer all three questions in the negative. Specifically, we
hold that, under the circumstances presented in this case, the District
2
Court did not err in adjudicating the Government’s CIPA motions ex
parte and in camera, admitting the out-of-court photo identification of
Al-Farekh, and limiting the cross-examination of the Government’s
fingerprint examiner. Accordingly, the judgment of the District Court
is AFFIRMED.
RICHARD M. TUCKER, Assistant United States
Attorney (David C. James, Douglas M.
Pravda, Saritha Komatireddy, Assistant
United States Attorneys; Alicia Cook, Trial
Attorney, Counterterrorism Section, United
States Department of Justice, Washington,
D.C., on the brief), for Richard P. Donoghue,
United States Attorney, Eastern District of
New York, Brooklyn, NY, for Appellee.
LAWRENCE M. STERN (Robert J. Boyle, on the
brief), New York, NY, for Defendant-Appellant.
JOSÉ A. CABRANES, Circuit Judge:
Defendant-Appellant Muhanad Mahmoud Al-Farekh (“Al-
Farekh”) is a U.S. citizen who traveled to Pakistan in 2007 to join al-
Qaeda. He became a leader in the terrorist organization and waged
violent jihad against the United States and its allies in the Middle East.
As a member of al-Qaeda, Al-Farekh conspired to bomb a U.S. military
3
base in Afghanistan. In 2015, agents of the Federal Bureau of
Investigation (“FBI”) arrested him in Pakistan and brought him to the
United States to be prosecuted for his crimes.**
Following a jury trial, Al-Farekh was convicted of, among other
things, using explosives, conspiring to murder U.S. nationals,
conspiring to use a weapon of mass destruction, conspiring to bomb a
U.S. government facility, and providing material support to terrorists.
The U.S. District Court for the Eastern District of New York (Brian M.
Cogan, Judge) sentenced Al-Farekh principally to 45 years’
imprisonment.
Al-Farekh appeals the District Court’s judgment and raises a
number of challenges to his conviction and sentence. We decide here
three of those challenges, leaving the others to be addressed in a
summary order filed simultaneously herewith: (1) whether a district
court abuses its discretion where it denies a defense counsel with the
appropriate security clearance access to motions filed by the
Government ex parte pursuant to section 4 of the Classified
Information Procedures Act (“CIPA”) 1; (2) whether a custodial
** Among the various issues raised in this appeal there are non-classified
facts that were filed under seal with leave of Court (and upon consent of both
parties) in confidential and redacted briefs (and in a sealed appendix) filed by both
the Defendant and the Government. In light of the sensitive nature of this
information and upon due consideration of the strong presumption of public access
that attaches to judicial documents, on April 6, 2020, we ordered the Clerk of Court
to make available to all counsel a copy of our sealed opinion. We also ordered
counsel for the parties to confer and jointly propose what, if any, redactions should
be made to the sealed opinion before it is made available for public viewing. We
4
interrogation that takes place overseas over a period of several weeks
and involves the display of hundreds of photographs as part of a
foreign country’s counterterrorism investigation is unduly suggestive,
thereby rendering inadmissible an out-of-court photo identification of
the defendant; and (3) whether a district court abuses its discretion
when it limits the cross-examination of a fingerprint examiner to
preclude references to a fingerprint misidentification in a wholly
unrelated case that took place 16 years ago—i.e., the Brandon Mayfield
incident. 2
We answer all three questions in the negative. Specifically, we
hold that, in the circumstances presented here, the District Court did
note that the limited redactions in this opinion, which relate to information in the
sealed record in this case, were jointly proposed by counsel and were accepted and
made by this Court.
1 18 U.S.C. app. 3, § 4.
2 In 2004, Spanish authorities recovered various fingerprints in connection
with the terrorist attack on the commuter trains in Madrid, Spain, and shared the
fingerprints with the FBI. See Mayfield v. United States, 599 F.3d 964, 966 (9th Cir.
2010). FBI examiners erroneously identified one of the fingerprints to be that of
Brandon Mayfield, a U.S. citizen and lawyer who resided in Oregon. See id. The FBI
arrested Mayfield in connection with the train bombings. See id. at 967. After the
Spanish authorities concluded that the fingerprint was a negative match of
Mayfield’s fingerprint and identified the fingerprints as belonging to an Algerian
national, Mayfield was released. See id. The Department of Justice’s Office of
Inspector General prepared an extensive report acknowledging several errors in
the FBI’s investigation—errors that “could have been prevented through a more
rigorous application of several principles of latent fingerprint identification.” U.S.
DEP’T OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL, A REVIEW OF THE FBI’S
H ANDLING OF THE BRANDON MAYFIELD CASE, at 6 (2006), available at
https://oig.justice.gov/special/s0601/final.pdf.
5
not err in adjudicating the Government’s CIPA motions ex parte and in
camera, admitting the out-of-court photo identification of Al-Farekh,
and limiting the cross-examination of the Government’s fingerprint
examiner.
In the summary order filed today, we decide the other issues
raised in Al-Farekh’s appeal. In sum, the judgment of the District
Court is AFFIRMED.
I. BACKGROUND
Al-Farekh is a U.S. citizen who was born in 1985 in Houston,
Texas and was raised in the United Arab Emirates. Between 2005 and
2007, Al-Farekh attended the University of Manitoba in Canada.
According to the Government, Al-Farekh dropped out of college;
traveled to Pakistan; joined al-Qaeda; became a senior leader of the
terrorist organization; and was responsible for, among other things,
conspiring to perpetrate a violent attack against civilian and military
personnel in a U.S. military base in Afghanistan.
On January 8, 2015, Al-Farekh was charged by complaint with
conspiring to provide material support to terrorists, in violation of 18
U.S.C. § 2339A. Several weeks later, on February 1, FBI agents arrested
Al-Farekh in Pakistan and brought him to the United States.
On May 28, 2015, a grand jury returned an indictment charging
Al-Farekh for the same offense, and on January 6, 2016, and January 5,
2017, a grand jury returned superseding indictments. Al-Farekh was
tried on the basis of the second superseding indictment for the
6
following counts: using explosives in violation of 18 U.S.C. § 844(f)(1)–
(2) (Count One); conspiring to murder U.S. nationals in violation of 18
U.S.C. § 2332(b)(2) (Count Two); conspiring to use a weapon of mass
destruction in violation of 18 U.S.C. § 2332a(a)(Count Three);
conspiring to use a weapon of mass destruction by a U.S. national in
violation of 18 U.S.C. § 2332a(b) (Count Four); conspiring to bomb a
U.S. government facility in violation of 18 U.S.C. § 2332f (Count Five);
conspiring to provide, attempting to provide, and providing material
support to terrorists in violation of 18 U.S.C. § 2339A(a) (Counts Six
and Seven); and conspiring to provide, attempting to provide, and
providing material support to the Foreign Terrorist Organization al-
Qaeda in violation of 18 U.S.C. § 2339B (Counts Eight and Nine).
A. Pretrial Proceedings
1. CIPA Materials
The Government’s case against Al-Farekh included classified
material. On June 30, 2016, the Government filed an ex parte classified
motion for a protective order pursuant to § 4 of CIPA, which Al-Farekh
opposed. On August 23, 2016, after reviewing the classified materials,
the District Court granted the Government’s ex parte motion. On April
28, 2017, the Government filed ex parte a supplemental CIPA motion,
which the District Court granted on May 24, 2017.
2. Deposition of Overseas Witness
The Government’s case against Al-Farekh also included
testimony by a former al-Qaeda collaborator and later Government
7
witness residing in the Middle East. On November 8, 2016, the
Government filed a motion for leave to take the witness’s testimony
by deposition pursuant to Federal Rule of Criminal Procedure 15. To
protect the witness’s safety and that of his family, the Government also
asked the Court to permit the witness to testify under a pseudonym
and to limit the cross-examination into the witness’s identity, country
of origin, nationality, current location, and his ongoing cooperation
with authorities. The Government did not, however, seek to limit its
disclosures to Al-Farekh on these subjects. On December 9, 2016, the
District Court granted the motion.
On March 14, 2017, the witness, who testified under the
pseudonym “Sufwan Murad,” was deposed. Murad was the driver
and bodyguard of al-Qaeda leader Haji Mohammed. Murad testified
that he saw a person he knew as Abdullah al-Shami, a senior official
of al-Qaeda’s external operations group, on two separate occasions
while driving Mohammed to deliver monthly stipends to the members
of al-Shami’s al-Qaeda brigade. Murad described both encounters in
significant detail. Murad also identified a photograph of Al-Farekh as
depicting the person he knew as al-Shami.
The able district judge presided over the Rule 15 deposition. On
July 8, 2017, Al-Farekh moved to suppress Murad’s out-of-court photo
identification of Al-Farekh and the related testimony regarding Al-
Farekh’s membership in al-Qaeda. The District Court denied the
motion.
8
B. Trial and Sentencing Proceedings
The trial of Al-Farekh started on September 12, 2017, and lasted
approximately two weeks.
1. The Government’s Case
As a student at the University of Manitoba, Al-Farekh joined the
Muslim Students Association, where he met and befriended his future
al-Qaeda co-conspirators, Ferid Imam and Maiwand Yar. Al-Farekh,
Imam, and Yar discussed and exchanged radical jihadist videos,
including some lectures by Anwar al-Awlaki, a now-deceased terrorist
who was the leader of al-Qaeda in the Arabian Peninsula. On March
8, 2007, Al-Farekh, Imam, and Yar dropped out of college and flew
from Canada to Pakistan, where they headed to the Federally
Administered Tribal Areas to join al-Qaeda.
On January 19, 2009, two vehicles carrying vehicle-borne
improvised explosive devices (“VBIED”) approached Forward
Operating Base Chapman, an important U.S. military base in
Afghanistan. The plan was for the first vehicle to detonate its VBIED
at the gate so the second vehicle could detonate its significantly larger
and more powerful VBIED inside the base and maximize the number
of casualties and damage. The first VBIED exploded as planned,
injuring several Afghan nationals and a U.S. soldier; the second
vehicle was stuck in the crater caused by the first VBIED and did not
explode. The driver of the second vehicle was shot and killed after
abandoning the vehicle. Latent fingerprints and a hair follicle were
recovered from adhesive packing tape in the undetonated VBIED.
9
According to the Government, 18 fingerprints and the hair follicle
were matched to Al-Farekh.
2. Al-Farekh’s Case
During the Government’s case-in-chief, Al-Farekh’s counsel,
through rigorous cross-examination, focused on undermining the
credibility of the Government’s witnesses and the reliability of its
evidence. During his own case-in-chief, Al-Farekh did not call any
witnesses but introduced a stipulation recounting certain inconsistent,
out-of-court statements by Murad and another Government witness.
3. The Verdict and Sentence
On September 29, 2017, the jury found Al-Farekh guilty of all
nine counts of the second superseding indictment. On March 13, 2018,
the District Court sentenced Al-Farekh principally to 45 years’
imprisonment.
II. DISCUSSION
On appeal, Al-Farekh challenges many of the District Court’s
evidentiary rulings, as well as the reasonableness of his sentence. As
stated above, we address here only three of the challenges to his
conviction: (1) whether the District Court erred in reviewing and
adjudicating the Government’s CIPA motions ex parte and in camera;
(2) whether the District Court erred in admitting Murad’s out-of-court
photo identification of Al-Farekh; and (3) whether the District Court
erred in limiting Al-Farekh’s cross-examination of the Government’s
fingerprint examiner.
10
For the reasons stated below, we find no error in the District
Court’s rulings and thus affirm the District Court’s judgment.
A. The Ex Parte Review and Adjudication of CIPA Motions
Al-Farekh argues that the District Court’s ex parte, in camera
review and adjudication of the Government’s filings made pursuant
to § 4 of CIPA constitutes reversible error. More specifically, Al-Farekh
argues that the District Court was required to provide him with access
to the Government’s filings because his counsel had the requisite
security clearance. 3 We review the challenge to the District Court’s
handling of the CIPA motions for “abuse of discretion.” 4
CIPA establishes procedures for the handling of “[c]lassified
information” in criminal cases. 5 The purpose of CIPA is “to protect[ ]
and restrict [ ]the discovery of classified information in a way that does
not impair the defendant’s right to a fair trial.” 6 Section 4 of CIPA
3 We have reviewed the source materials underlying the Government’s
CIPA submissions and conclude that the District Court did not err in determining
that the Government’s summaries of those materials were adequate.
4 United States v. Abu-Jihaad, 630 F.3d 102, 140, 143 (2d Cir. 2010).
5 18 U.S.C. app. 3, § 1(a) (defining “[c]lassified information” as “any
information or material that has been determined by the United States Government
pursuant to an Executive order, statute, or regulation, to require protection against
unauthorized disclosure for reasons of national security”).
6 Abu-Jihaad, 630 F.3d at 140 (quoting United States v. Aref, 533 F.3d 72, 78 (2d
Cir. 2008) (alterations in original and quotation marks omitted)).
11
governs the discovery of classified information by criminal
defendants. It provides:
The court, upon a sufficient showing, may authorize the
United States to delete specified items of classified
information from documents to be made available to the
defendant through discovery under the Federal Rules of
Criminal Procedure, to substitute a summary of the
information for such classified documents, or to
substitute a statement admitting relevant facts that the
classified information would tend to prove. The court
may permit the United States to make a request for such
authorization in the form of a written statement to be
inspected by the court alone. If the court enters an order
granting relief following such an ex parte showing, the
entire text of the statement of the United States shall be
sealed and preserved in the records of the court to be
made available to the appellate court in the event of an
appeal. 7
We have read this provision to confirm the “district courts’ power
under Federal Rule of Criminal Procedure 16(d)(1) to issue protective
orders denying or restricting discovery for good cause, which includes
information vital to the national security.” 8
7 18 U.S.C. app. 3, § 4.
8 Abu-Jihaad, 630 F.3d at 140 (quoting United States v. Stewart, 590 F.3d 93,
130 (2d Cir. 2009) (quotation marks omitted)). Federal Rule of Criminal Procedure
16(d)(1) provides in relevant part that “[a]t any time the court may, for good cause,
deny, restrict, or defer discovery or inspection, or grant other appropriate relief”
12
As relevant here, we have held that § 4 of CIPA and Federal Rule
of Criminal Procedure 16(d)(1) “authorize ex parte proceedings” and
that a “district court act[s] well within its discretion in reviewing
[CIPA] submissions ex parte and in camera.” 9 As such, notwithstanding
the rarity of ex parte proceedings in criminal matters, there can be no
question that a district court’s ex parte, in camera adjudication of CIPA
motions falls squarely within the authority granted by Congress.
Al-Farekh argues that this Court “has sanctioned ex parte
proceedings in CIPA cases” only where defense counsel did not
possess the requisite security clearance. 10 Al-Farekh asks us to hold
that, where a defense counsel has an appropriate security clearance,
the District Court may not adjudicate the CIPA motions ex parte and
must give defense counsel access to the classified information.
We decline to adopt any such bright-line rule. Nothing in the
text of § 4 limits the District Court’s authority to review classified
information ex parte only where defense counsel lacks a security
clearance. Nor do our decisions on § 4 of CIPA—United States v. Aref
and United States v. Abu-Jihaad—turn on that fact. To the contrary, as
and that “[t]he court may permit a party to show good cause by a written statement
that the court will inspect ex parte.”
9 Abu-Jihaad, 630 F.3d at 143; see also Stewart, 590 F.3d at 132; Aref, 533 F.3d
at 81.
Appellant’s Br. at 39 (noting that defense counsel in Aref and Abu-Jihaad
10
did not possess the appropriate security clearance).
13
explained below, Al-Farekh’s proposed rule cannot be reconciled with
CIPA as enacted by Congress and interpreted by our Court.
Starting with the text, the plain language of § 4 makes clear that
a district court is required to decide in the first instance whether the
Government’s classified information is discoverable and the extent
and form of any disclosure to the defendant. 11 The structure of the
CIPA statute reinforces our reading of § 4. Congress knew how to
provide for the participation of defendants in certain in camera
proceedings, as it did in § 6 of CIPA. 12 Yet, notably, Congress did not
require such participation in § 4 proceedings. Instead, § 4 simply
provides that an ex parte motion by the Government may “be inspected
by the court alone.” 13
Section 4 also authorizes the Government to ask a district court
to, among other things, substitute a summary of the classified
11 18 U.S.C. app. 3, § 4 (authorizing the deletion of classified information
from discoverable materials or the substitution of a summary or statement for the
classified information).
12 18 U.S.C. app. 3, § 6(a) (authorizing the Government to “request the court
to conduct a hearing to make all determinations concerning the use, relevance, or
admissibility of classified information that would otherwise be made during the
trial or pretrial proceeding,” requiring the court to “conduct such a hearing” upon
the Government’s request, and providing that any such hearing “shall be held in
camera if the Attorney General certifies to the court . . . that a public proceeding
may result in the disclosure of classified information”); see also Sen. Rep. No. 96–
823, at 7–8.
13 18 U.S.C. app. 3, § 4.
14
information or a statement of the discoverable information. 14 And § 7
authorizes the Government to file an interlocutory appeal from a
decision denying a motion for a protective order. 15 If a defendant’s
counsel was required to participate in a § 4 proceeding and be
provided access to classified information, as Al-Farekh contends, the
alternative relief authorized in these provisions would be rendered
insignificant, if not meaningless.
The legislative history also supports our reading of the statute.
The House Report states, for example, that “since the government is
seeking to withhold classified information from the defendant, an
adversary hearing with defense knowledge would defeat the very
purpose of the discovery rules.” 16 And our reading is consistent with
that of other Circuits that have acknowledged, either explicitly or
implicitly, the lawfulness and appropriateness of ex parte proceedings
under § 4 of CIPA. 17 More generally, it is consistent with the well-
14 See id.
15 See id. app. 3, § 7(a) (“An interlocutory appeal by the United States taken
before or after the defendant has been placed in jeopardy shall lie to a court of
appeals from a decision or order of a district court in a criminal case authorizing
the disclosure of classified information, imposing sanctions for nondisclosure of
classified information, or refusing a protective order sought by the United States to
prevent the disclosure of classified information.”).
16H.R. Rep. No. 96–831, pt. 1, at 27 n.22 (1980); accord Abu-Jihaad, 630 F.3d at
143 (quoting Aref, 533 F.3d at 81).
17 See, e.g., United States v. Campa, 529 F.3d 980, 995 (11th Cir. 2008) (“The
right that section four confers on the government would be illusory if defense
counsel were allowed to participate in section four proceedings because defense
15
settled notion that ex parte, in camera review can be an appropriate
procedure for district judges to rely upon when called to handle
particularly sensitive documents. 18
As a practical matter, because it may well be that the
information in a § 4 motion is not discoverable at all, Al-Farekh’s
theory would permit a defendant represented by counsel with a
security clearance to gain access to classified information that would
otherwise be unavailable to the defendant. That possibility could
counsel would be able to see the information that the government asks the district
court to keep from defense counsel’s view.”); United States v. Klimavicius-Viloria, 144
F.3d 1249, 1261 (9th Cir. 1998) (explaining that “ex parte, in camera hearings in which
government counsel participates to the exclusion of defense counsel are part of the
process that the district court may use in order to decide the relevancy of the
[classified] information”); accord United States v. Hanna, 661 F.3d 271, 295 (6th Cir.
2011) (same); United States v. Mejia, 448 F.3d 436, 457–58 (D.C. Cir. 2006) (same).
18Cf. In re The City of New York, 607 F.3d 923, 948–49 (2d Cir. 2010) (providing
guidance to district courts on how to handle especially sensitive materials to
analyze a claim for law enforcement privilege) (citing In re Grand Jury Subpoenas
Dated March 19, 2002 and August 2, 2002, 318 F.3d 379, 386 (2d Cir. 2003) (describing
the presentation of documents for in camera review as a “practice both long-
standing and routine in cases involving claims of privilege” and citing illustrative
cases); United States v. Wolfson, 55 F.3d 58, 60–61 (2d Cir. 1995) (noting, in the
criminal context, that “the prescribed procedure for resolving [a] dispute [as to
whether certain confidential documents are subject to discovery] is to provide the
documents to the district court for in camera review” and that “[t]he district court
normally returns such documents to the party that submitted them in camera ”)).
16
result in the improper disclosure of information that, by its very
nature, may put the national security of the United States at risk. 19
Here, notwithstanding the District Court’s authority to review
the CIPA filings without comment by Al-Farekh, the District Court
met ex parte with defense counsel so that counsel could present Al-
Farekh’s theory of the case and his potential defenses. Following this
meeting, the District Court reviewed the classified information in the
Government’s CIPA materials to determine whether it was helpful or
material to Al-Farekh’s defense and whether the Government’s
proposed summary substitutions were adequate to guarantee Al-
Farekh a fair trial. The Government even revised some of its proposed
substitutions after meeting with the District Court and before the
District Court approved them.
Far from abusing its discretion, the District Court properly
exercised its authority under CIPA when it reviewed and adjudicated
the Government’s CIPA motions ex parte and in camera. We find no
basis in CIPA for vacating Al-Farekh’s conviction.
19 Persons with an appropriate security clearance still may not have access
to classified information if they do not have a “need to know” that information. See
Exec. Order No. 13526, §§ 4.1(a), 6.1(dd), 75 Fed. Reg. 707, 720, 728–29 (Dec. 29,
2009) (internal hyphenation omitted). A defense counsel does not “need to know”
classified information that is neither helpful nor material to the defense of his or
her client. See United States v. Libby, 429 F. Supp. 2d 18, 24 & n.8 (D.D.C. 2006) (“It
is axiomatic that even if the defendant and his attorneys had been granted the
highest level of security clearances, that fact alone would not entitle them to access
to every piece of classified information this country possesses.”), as amended, 429 F.
Supp. 2d 46 (D.D.C. 2006).
17
B. Murad’s Out-of-Court Photo Identification of Al-Farekh
Al-Farekh also contends that the District Court denied him his
due process rights under the Fifth Amendment when it denied his
motion to exclude Sufwan Murad’s out-of-court photo identification
of Al-Farekh as the man Murad knew as “Abdullah al-Shami, external
operations official of Al-Qaeda.” 20 Specifically, Al-Farekh argues that
the photo identification should have been suppressed as the product
of an unduly suggestive identification procedure. We review the
District Court’s admission of identification evidence for clear error,21
overturning its “findings as to what procedures were used . . . only if
clearly erroneous” and giving due “deference” to its “assessment of
the credibility of the witness[ ].” 22
Murad, a former al-Qaeda collaborator, testified at his Rule 15
deposition that he saw a person he knew as Abdullah al-Shami on two
separate occasions while driving al-Qaeda leader Haji Mohammed to
deliver stipends to members of al-Shami’s al-Qaeda brigade.
20 Appellant’s App’x (“App’x”) at 112.
21 See United States v. Ciak, 102 F.3d 38, 42 (2d Cir. 1996) (citing United States
v. Jakobetz, 955 F.2d 786, 803 (2d Cir. 1992)).
22 United States v. Thai, 29 F.3d 785, 808 (2d Cir. 1994).
18
. 23
24
, authorities in
Murad’s “home country” 25 again interrogated him
. During that interrogation, Murad
mentioned al-Shami and provided a detailed description of al-Shami’s
physical appearance. Murad then worked with a sketch artist to create
a computer sketch of al-Shami. Murad testified that he “would give
[the sketch] about 80 percent accuracy.” 26
. 27 In his home
country, interrogators showed Murad approximately 300 photographs
and asked him to identify the person in each picture.
23 Sealed App’x at 14–15.
24 Id. at 15.
25Because Murad’s country of residence is sensitive information that was
filed under seal, we will refer to it as “home country” throughout this opinion.
26 App’x at 108.
27 Sealed App’x at 16.
19
28
In his home country, Murad identified one photograph of Al-
Farekh after providing his description of al-Shami and helping to
compose the sketch. Murad expressed the view that he had “100
percent” confidence in his identification. 29 At the time of the
identification in his home country, Murad wrote a statement on the
back of the photograph depicting Al-Farekh, the person Murad knew
as “Abdullah al-Shami, external operations official of Al-Qaeda.” 30 At
his deposition much later, Murad provided a description of al-Shami’s
appearance that is substantially similar to the one he testified he had
provided to the authorities in his home country, and also identified the
same photograph of Al-Farekh.
In reviewing Al-Farekh’s due process challenge to the
admission of Murad’s identification, we must first ask whether the
identification procedures employed overseas were “unduly
28 Id.
29 App’x at 112.
30 Id. at 112. At his deposition, Murad testified that he could not remember
if the authorities had shown him that specific photograph, but that he was
sure that the authorities in his home country had shown it to him after composing
the sketch. Murad also was shown four other photographs of Al-Farekh, but was
not able to identify them. Unlike the photograph of Al-Farekh that Murad did
identify, the other four photographs depicted Al-Farekh at a different time of his
life and with a significantly different physical appearance.
20
suggestive of the suspect’s guilt.” 31 In conducting this threshold
inquiry, we must “examine the procedures employed in light of the
particular facts of the case and the totality of the surrounding
circumstances.” 32 If the procedures were not unduly suggestive, “the
trial identification testimony”—here, Murad’s testimony at his Rule 15
deposition—“is generally admissible without further inquiry into the
reliability of the [out-of-court,] pretrial identification.” 33 That is so
because, where there is no possible taint of suggestiveness in the
identification procedures, “any question as to the reliability of the
witness’s identifications goes to the weight of the evidence, not its
admissibility.” 34
If the identification procedures were unduly suggestive, then
we must consider whether the “in-court identification” is
“independently reliable rather than the product of the earlier
suggestive procedures.” 35 An identification that is independently
reliable could still be admissible, “although a strongly suggestive pre-
31 United States v. Maldonado-Rivera, 922 F.2d 934, 973 (2d Cir. 1990).
Thai, 29 F.3d at 808 (citing United States v. Concepcion, 983 F.2d 369, 377 (2d
32
Cir. 1992); Maldonado-Rivera, 922 F.2d at 973).
33 Maldonado-Rivera, 922 F.2d at 973.
34 Id. (citing Jarrett v. Headley, 802 F.2d 34, 42 (2d Cir. 1986)).
35Id. (citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Sims v. Sullivan, 867
F.2d 142, 145 (2d Cir. 1989); Dickerson v. Fogg, 692 F.2d 238, 244 (2d Cir. 1982)). Here,
the in-court identification consists of Murad’s testimony at his Rule 15 deposition,
which was admitted into evidence at trial.
21
trial identification procedure necessarily makes it difficult for the
reviewing court to find such independent reliability.” 36
With this background in mind, we turn to the first step of our
inquiry—whether the identification procedures employed by foreign
governments during Murad’s interrogation were unduly suggestive.
A review of our caselaw suggests that identification procedures are
unduly suggestive when they involve coercive elements employed to
elicit a specific identification. As we have noted in the context of
photographic presentations, “[t]he [photo] array must not be so
limited that the defendant is the only one to match the witness’s
description of the perpetrator.” 37 For example, it could be unduly
suggestive if there is a “display” of “only the picture of a single
individual who generally resembles the person [the witness] saw, or
. . . the pictures of several persons among which the photograph of a
single such individual recurs or is in some way emphasized.” 38
In United States v. Fernandez, we held that the use of a six-photo
array where only one of the six persons depicted in the photographs
36Ciak, 102 F.3d at 42 (citing Dickerson, 692 F.2d at 247). In conducting this
second-step inquiry into whether an identification is independently reliable, a court
must consider the following factors: “the opportunity of the witness to view the
criminal at the time of the crime, the witness’ degree of attention, the accuracy of
the witness’ prior description of the criminal, the level of certainty demonstrated
by the witness at the confrontation, and the length of time between the crime and
the confrontation.” Neil v. Biggers, 409 U.S. 188, 199–200 (1972).
37 Maldonado-Rivera, 922 F.2d at 974.
38 Simmons v. United States, 390 U.S. 377, 383 (1968).
22
even “remotely resemble[d]” the witness’s description of the suspect
was unduly suggestive. 39 Similarly, in Dunnigan v. Keane, we found
that a photo array consisting of “more than 30 pictures of one
individual using an ATM card, and no pictures of anyone else,” was
“highly suggestive.” 40 And in United States v. Ciak, we noted that a
witness’s identification of a driver’s license in the police officer’s desk
as that of the suspect-defendant was unduly suggestive because the
police officer had previously identified a photograph of the defendant
in front of the witness. 41
To be sure, there is no bright-line rule that can be applied to
determine whether an identification procedure is unduly suggestive.
We have stated, however, that “a court must consider several factors,
including the size of the [photo] array, the manner of presentation by
the officers, and the contents of the array.” 42 Thus, although not an
exhaustive summary, we have found identification procedures to be
unduly suggestive when they take at least one of three forms: (1) a very
39 United States v. Fernandez, 456 F.2d 638, 641–42 (2d Cir. 1972). Notably, we
also noted in dictum that if there had been an 11-photo array with two photographs
depicting the person who matched the witness’s physical description, the
identification procedure would have been permissible. See id.
40Dunnigan v. Keane, 137 F.3d 117, 129 (2d Cir. 1998), abrogated on other
grounds by Perry v. New Hampshire, 565 U.S. 228 (2012).
41 Ciak, 102 F.3d at 42 (noting that “the Government concedes, as it must, that
[the police] employed unduly suggestive pre-trial procedures with [the witness]”
(emphasis added)).
42 Thai, 29 F.3d at 808 (citing Concepcion, 983 F.2d at 377; Maldonado-Rivera,
922 F.2d at 974).
23
small number of photographs, which are in turn presented in a manner
that suggests to the witness that a specific person may be the suspect
(as in Fernandez); (2) a large number of photographs depicting the same
person (as in Dunnigan); or (3) the utterance of suggestive comments
by interrogators to the witness to obtain an identification that is jointly
constructed by supplying the witness with previously unknown facts
about the suspect (as in Ciak).
By contrast, where, as here, there is a large display of photos
arranged in no particular order or format, and the interrogators do not
intimate which picture the witness should identify, the identification
procedure is not impermissibly suggestive. 43 Specifically, we have
held that an array of more than 50 photographs depicting men of the
same ethnicity, who appeared to be of the same age and had similar
hair color, was not unduly suggestive. 44 We have also held that an
array of nine, or even as few as six, photographs was not so small as
to suggest the identification of the suspect, where “several of the
persons depicted met [the witness’s] description of [the suspect], and
43 See, e.g., id. at 810 (“Although repeatedly asking a witness who has
selected a certain photo to look again at the array might be troubling in some
circumstances, for example if there were a small number of photos and only one
perpetrator, the procedure described here, given the large number of photos in the
array and the large number of robbers, was not impermissible.”); United States ex
rel. Gibbs v. Vincent, 524 F.2d 634, 637–39 (2d Cir. 1975) (concluding that a procedure
involving the display of several hundreds of photographs to witnesses of an armed
robbery was appropriate).
44 See Thai, 29 F.3d at 809.
24
there was no feature of [the suspect’s] photo that made his stand out
from all the rest.” 45
On review of the record before us, we conclude that the
procedures that resulted in Murad’s identification of Al-Farekh were
not unduly suggestive.
The totality of the circumstances surrounding the identification
of Al-Farekh’s photograph in Murad’s home country confirm that the
identification procedures were not employed to elicit a positive
identification of Al-Farekh. To the contrary, Murad was shown
approximately 300 photographs and was asked to identify the persons
depicted in each photograph as part of the home country’s
counterterrorism efforts. Out of the 300 photographs that were shown
to Murad, only five—each of them different—depicted Al-Farekh.
Finally, Murad provided a detailed description of Al-
Farekh’s physical appearance and assisted in the creation of a
45 Maldonado-Rivera, 922 F.2d at 974–75 (involving a witness’s description of
a suspect “as a Puerto Rican man in his 30’s who had a small stature, was balding
or losing some of his hair, and had a small beard,” as well as an array of nine
photographs depicting persons whose ethnicity was “indeterminate, and the
majority may well be Hispanic,” “[a]ll but one or two of the subjects appear to be
in their 30’s,” “[a]ll nine have a small amount of facial hair,” and “[t]wo appear to
be balding, and two others have hairlines that may be receding”); see, e.g., United
States v. Archibald, 734 F.2d 938, 940–41 (2d Cir. 1984) (upholding a six-photo array);
United States v. Marrero, 705 F.2d 652, 655 n.5 (2d Cir. 1983) (same); United States v.
Bennett, 409 F.2d 888, 898 (2d Cir. 1969) (same).
25
computer sketch before he was shown the photograph of Al-Farekh
that he identified out of the array.
Unsurprisingly, Al-Farekh does not argue that the identification
procedures in Murad’s home country were unduly suggestive.
Instead, Al-Farekh’s challenge is premised on the unsupported
assertion that Murad was in fact shown Al-Farekh’s photograph while
Murad was in custody and was subjected to an interrogation
that Murad described as 46
According to Al-Farekh, because Murad was shown the photograph
in a environment in before it was shown to him
by officials in his home country, the circumstances surrounding the
identification were unduly suggestive and rendered the identification
unreliable. But there is no evidence that Murad was in fact shown the
photograph by the authorities. Murad testified that,
although possible, he had no memory of that.
Even assuming, for the sake of argument, that Murad were
shown Al-Farekh’s photograph in , there is no basis in the
record to conclude that the procedures of the authorities
were unduly suggestive. Murad did testify that the interrogation was
47 but he did so only in terms of
the disorganization of the photo array and interrogation. The photo
array was in no way unfair or prejudicial to Al-Farekh, who has not
pointed to any evidence in the record suggesting, much less showing,
46 Sealed App’x at 15.
47 Id.
26
that there were suggestive comments uttered during the interrogation
or any other attempts to influence Murad’s identification of Al-Farekh.
Finally, Al-Farekh argues that the identification is unreliable
because there are some inconsistencies in Murad’s testimony relating
to when Murad first saw the photograph of Al-Farekh that Murad
identified as depicting the person that he knew as al-Shami. That may
be so. But none of those arguable inconsistencies relate to the potential
suggestiveness of the identification procedures that resulted in the
challenged identification. Any remaining “question as to the reliability
of [Murad’s] identifications [of Al-Farekh] goes to the weight of the
evidence, not its admissibility.” 48
In sum, we find no error, let alone “clear error,” in the admission
of Murad’s photo identification and his related testimony.
C. The Cross-Examination of Fingerprint Examiners in Light
of the Brandon Mayfield Incident
The evidence against Al-Farekh included the testimony of an
FBI fingerprint examiner, Kendra Sibley, who concluded that 18 latent
prints recovered from the adhesive packing tape in the undetonated
VBIED matched Al-Farekh’s fingerprints. Al-Farekh argues that the
District Court erroneously precluded him from properly cross-
48 Maldonado-Rivera, 922 F.2d at 973 (citing Jarrett, 802 F.2d at 42).
27
examining Sibley. Specifically, Al-Farekh challenges the District
Court’s exclusion of evidence relating to the Brandon Mayfield
incident of May 2004, where FBI examiners examined one latent print
in connection with a terrorist attack on the commuter trains in Madrid,
Spain, and erroneously identified the fingerprint to be that of
Mayfield, a U.S. citizen residing in Oregon. 49
Relying on its discretionary authority under Federal Rule of
Evidence 403, 50 the District Court prevented Al-Farekh from cross-
examining Sibley about the Mayfield incident on the basis that the
potential for confusion and undue prejudice greatly exceeded
whatever probative value the reference to Mayfield’s case might have.
Al-Farekh contends that the District Court’s limitation on his cross-
examination of Sibley violated his constitutional right to present a
defense grounded in either the Fifth Amendment’s Due Process
Clause 51 or the Sixth Amendment’s Confrontation Clause 52 because it
49 See supra note 2.
50Federal Rule of Evidence 403 provides: “The court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.”
51 The Fifth Amendment’s Due Process Clause provides that “[n]o person
shall be . . . deprived of life, liberty, or property, without due process of law.” U.S.
CONST. amend. V.
52 The Sixth Amendment’s Confrontation Clause provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him[.]” U.S. CONST. amend. VI.
28
prevented him from properly undermining the reliability of Sibley’s
testimony and the fingerprint examination in this case.
Generally, we review for an abuse of discretion a judge’s
limitation on the scope of a defendant’s cross-examination. 53 “To find
such abuse, we must conclude that the trial judge’s evidentiary ruling[
] [was] arbitrary and irrational.” 54 But when the limitation directly
implicates a defendant’s constitutional right, such as his rights under
the Confrontation Clause, we review that evidentiary ruling de novo.55
“Even if error is found, ‘a reviewing court might nonetheless say that
the error was harmless beyond a reasonable doubt.’” 56
The Confrontation Clause protects a criminal defendant’s right
to cross-examine witnesses. 57 An undue limitation on cross-
examination may violate the Sixth Amendment’s Confrontation
Clause if it prevents the defendant from, among other things, exposing
a witness’s biases, motivation, or incentives for lying, or eliciting
testimony that is relevant and material to the defense. 58
53 See United States v. White, 692 F.3d 235, 244 (2d Cir. 2012) (citing United
States v. Figueroa, 548 F.3d 222, 226 (2d Cir. 2008)).
54 Id. (quoting United States v. Paulino, 445 F.3d 211, 217 (2d Cir. 2006)
(quotation marks omitted)).
55 United States v. Vitale, 459 F.3d 190, 195 (2d Cir. 2006) (citations omitted).
56 Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).
57 See Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987).
58 See id. at 51–52.
29
This is not to say, however, that the defendant has the unbridled
prerogative of cross-examining witnesses about any topic, or in the
manner that the defendant wishes. For example, once a defendant is
able to impeach the witness’s credibility, the extent to which the
defendant is able “to hammer that point home to the jury” is “of
peripheral concern to the Sixth Amendment.” 59 Trial judges have
broad discretion to limit the cross-examination of witnesses as
appropriate to minimize the risk of harassment, undue prejudice,
confusion of issues to be presented to the jury, redundancy of the
evidence, or unnecessary delays in the trial. 60 We have thus recognized
that district courts have an independent “responsibility to [e]nsure
that issues are clearly presented to the jury” 61 by, for example,
imposing reasonable limitations on cross-examination. 62
The District Court’s limitation on the cross-examination of
Sibley does not run afoul of Al-Farekh’s rights under the
59United States v. Groce, 891 F.3d 260, 267 (7th Cir. 2018) (citations and
quotations omitted); accord Vitale, 459 F.3d at 195–96.
60 See Van Arsdall, 475 U.S. at 679 (noting that district courts have “wide
latitude . . . to impose reasonable limits . . . on cross-examination based on concerns
about, among other things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only marginally relevant”).
61 United States v. Pisani, 773 F.2d 397, 403 (2d Cir. 1985) (citing United States
v. Vega, 589 F.2d 1147, 1152 (2d Cir. 1978)); see also Fed. R. Evid. 403 (authorizing the
court to “exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . confusing the issues [or] misleading the jury”).
62See, e.g., Vitale, 459 F.3d at 195; United States v. Sasso, 59 F.3d 341, 347 (2d
Cir. 1995).
30
Confrontation Clause. First, the misidentification of Mayfield is only
marginally relevant to the Government’s case against Al-Farekh. The
fingerprint examiners in the Mayfield incident were not involved in
the instant case. And the Mayfield case involved only one print that
was examined 16 years before the trial of Al-Farekh, whereas 18 latent
prints were recovered from the undetonated VBIED and examined in
this case.
Second, the District Court did not preclude Al-Farekh from
highlighting the possible subjectivity of, and potential flaws in,
fingerprint evidence through his cross-examination of Sibley. To the
contrary, Al-Farekh had the opportunity to do just that. Sibley
testified, for example, about the “level of subjectivity in latent print
comparisons” and about the potential for mistakes by examiners in
making false positive identifications. 63 Other than being unable to rely
on the Mayfield case and the report of the Department of Justice’s
Office of Inspector General prepared on that case, Al-Farekh was free
to attack Sibley’s methodology and fingerprint examinations as a type
of evidence.
There are many types of evidence whose reliability and
objectivity could be probed through effective cross-examination. By
relying on scientific literature, expert testimony, or common-sense
experiences, a defendant may highlight the reliability concerns that are
sometimes associated with, for example, eyewitness identifications or
63 Gov’t App’x at 61.
31
confessions elicited by police interrogations. 64 In doing so, however,
trial judges rarely, if ever, allow defendants to rely on the facts of
wholly unrelated cases to make their point. A ruling of that sort might
confuse jurors.
Fingerprint evidence is no different. Here, the District Court’s
limitation on the cross-examination of Sibley is consistent with the
understanding that a defendant may attack the subjectivity of
fingerprint examinations as a category of evidence, but is not entitled
without more to rely on a fingerprint examiner’s mistakes in a wholly
unrelated case to undermine the testimony of a different examiner. 65
64 To be clear, the availability of cross-examination as a tool to probe the
reliability of evidence does not eliminate the trial judge’s obligation to determine
the admissibility of the evidence in the first instance, particularly where the
defendant’s constitutional rights are implicated. As discussed above, judges have
an independent obligation to determine if, for example, an out-of-court
identification is the result of unduly suggestive procedures, or if the coercion
inherent in custodial interrogations has resulted in an involuntary confession that
should be excluded.
65 See, e.g., United States v. Bonds, 922 F.3d 343, 344, 346 (7th Cir. 2019)
(holding that the exclusion of evidence relating to the Mayfield incident during the
cross-examination of an FBI examiner who worked “in the same FBI division that
mistakenly identified Mayfield” was appropriate because, among other things,
“[g]uilt by association would be a poor reason to deny a district judge the discretion
otherwise available under Fed. R. Evid. 403”); United States v. Rivas, 831 F.3d 931,
935 (7th Cir. 2016) (holding that “there was no Sixth Amendment violation (or
abuse of discretion, to the extent [the defendant] argues it)” in the district court’s
limitation on the cross-examination of the fingerprint examiner because the
examiner “was not the person who conducted the analysis in the Mayfield case[,]
. . . was not involved in the Mayfield case in any way, and the separate Mayfield
case has no relationship to this case”).
32
Since the examiners in the Mayfield case bear no relation to the
examiners in Al-Farekh’s case, we see no error in the District Court’s
conclusion that marginally relevant evidence relating to a separate
case with no factual connection to Al-Farekh might confuse the jury
and, therefore, should be excluded.
III. CONCLUSION
To summarize, we hold that:
(1) The District Court’s ex parte, in camera adjudication of
motions filed pursuant to § 4 of the Classified Information
Procedures Act (“CIPA”) fell squarely within the authority
granted by Congress. The District Court therefore properly
exercised its authority under CIPA when it reviewed and
adjudicated the Government’s CIPA motions ex parte and in
camera, notwithstanding defense counsel’s security
clearance.
(2) The totality of the circumstances surrounding the
identification of Al-Farekh’s photograph—where he was
shown hundreds of photographs arranged in no particular
manner and where the interrogators did not utter prejudicial
comments on the identification—were not unduly
suggestive. Accordingly, the District Court did not err in
admitting the out-of-court photo identification of Al-Farekh.
(3) The District Court acted well within its discretion in limiting
Al-Farekh’s cross-examination of the Government’s
33
fingerprint examiner to exclude references to the incident
concerning Brandon Mayfield 16 years earlier because the
fingerprint examiner here was not involved in the analysis in
that earlier case that resulted in the misidentification of
Mayfield’s fingerprint.
For the foregoing reasons, the District Court’s judgment is
AFFIRMED.
34