United States v. Hafiz Muhammad Sher Ali Khan

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14048
________________________
D.C. Docket No. 1:11-cr-20331-RNS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HAFIZ MUHAMMAD SHER ALI KHAN,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 23, 2015)
Before TJOFLAT, WILSON and JILL PRYOR, Circuit Judges.
TJOFLAT, Circuit Judge:
This appeal concerns the challenging twenty-nine day trial of Hafiz
Muhammad Sher Ali Khan. A federal grand jury indicted Khan in 2011 on
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terrorism-related charges. At trial, the Government presented evidence
demonstrating Khan’s involvement in the transfer of money to members of the
Tehrik-e Taliban Pakistan, a foreign terrorist organization also known as the
Pakistani Taliban. 1 The jury convicted Khan on all counts: conspiring to provide
(Count 1), and providing or attempting to provide (Count 3), material support to
terrorists, in violation of 18 U.S.C. § 2339A; and conspiring to provide (Count 2),
and providing or attempting to provide (Count 4), material support to a foreign
terrorist organization, in violation of 18 U.S.C. § 2339B. Khan now appeals his
convictions. After careful review, we affirm.
I.
Khan was born approximately eighty years ago in the Swat Valley, a region
of northern Pakistan located near the Afghanistan–Pakistan border. Since 1967,
Khan has owned a madrassa in his native village. 2 For more than four decades, his
madrassa has taught local children about the Quran and other religious topics.
Over time, Khan’s madrassa grew. It eventually expanded into a boarding school
that attracted children from surrounding villages. Most of Khan’s students were
1
The Secretary of State designated the Pakistani Taliban as a foreign terrorist
organization in September 2010. See 75 Fed. Reg. 53,732 (Sept. 1, 2010). It is distinct from the
Afghan Taliban. For convenience, we use the terms “Pakistani Taliban” and “Taliban”
interchangeably.
2
Literally translated from Arabic, “madrassa” means “school”; a madrassa is not
necessarily a religious school, although it can be. For convenience, we use the terms “madrassa”
and “school” interchangeably.
2
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poor: none paid the cost of tuition, room, or board. To finance the school’s day-to-
day operations, Khan relied on donations from relatives and others interested in
helping the madrassa flourish. This was his life’s work. So central is his role as a
spiritual leader that it is even reflected in his first name—“Hafiz” is a title he
earned for having memorized the Quran in its entirety.
But after six decades in Pakistan, Khan decided to leave. He came to the
United States in 1994 and took up residence in Miami, Florida. He was naturalized
as an American citizen in 2000. Prior to his arrest in 2011, Khan was an imam at a
local mosque.
Khan’s absence from Pakistan did not signal his madrassa’s end. Save for a
period of time in 2009 when the Pakistani government temporarily shut the school
down for its alleged connections to the Taliban, the madrassa still maintained
operations in the Swat Valley. And Khan remained actively involved. For
example, he carried on a legal dispute in Pakistan over a parcel of land he sought to
acquire in the hopes of building an addition to the madrassa.
He sent money, too. Using local financial institutions, Khan wired money to
personal bank accounts he kept at the National Bank of Pakistan. He then
instructed friends and relatives in Pakistan who had access to these accounts to
distribute the money on his behalf. Sometimes, the remittances would go toward
financing the madrassa. For instance, Khan wired money to pay the salaries owed
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to the madrassa’s teachers, make repairs to the building, and buy oil to run the
school’s generator. Other times, the money went to injured or incarcerated Taliban
fighters. Indeed, evidence admitted against Khan at trial revealed that Khan
leveraged his relationship with the madrassa to support the Pakistani Taliban.
While Khan shuffled funds among accounts at home and abroad, the
Government watched—and listened. The Government’s investigation began in
late 2007. It produced three types of evidence. First, pursuant to the Foreign
Intelligence Surveillance Act (“FISA”), 50 U.S.C. §§ 1801 et seq., the Government
intercepted approximately 35,000 telephone calls between Khan and his friends
and relatives in Pakistan. Second, the Government employed an informant, who—
posing as a wealthy Taliban sympathizer—ingratiated himself with Khan by
helping Khan run errands and attend medical appointments, all while
surreptitiously recording their conversations. Third, the Government subpoenaed
financial records from the banking institutions Khan used to transfer his money
from the United States to Pakistan.
In May 2011, Khan was indicted along with five codefendants: two of his
sons, Irfan Khan and Izhar Khan; his daughter, Amina Khan; his grandson, Alam
Zeb; and his business associate, Ali Rehman. Ali Rehman, Alam Zeb, and Amina
Khan—all of whom live in Pakistan—remain untried. Efforts to extradite them to
the United States failed. The Government dismissed charges against Irfan Khan
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prior to trial, and the District Court acquitted Izhar Khan following the
Government’s case-in-chief. Hafiz Khan’s case, however, proceeded. Following
trial, the jury convicted Khan on all counts of the indictment, and the District Court
sentenced Khan to twenty-five years in prison.3
II.
Khan advances three arguments on appeal. First, Khan says the District
Court abused its discretion by permitting the Government’s translator to add
certain words, in brackets, to translations of intercepted telephone calls between
Khan and his contacts in Pakistan. Second, Khan claims the District Court abused
its discretion by allowing the Government’s first witness at trial, FBI Agent
Michael Ferlazzo, to testify as an expert witness without the proper notice or
foundation; by letting Ferlazzo testify as a summary witness; and by limiting the
scope of Khan’s cross-examination of Ferlazzo. And third, Khan contends the
District Court abused its discretion by denying a continuance or a mistrial after the
Internet connection supporting live-video-feed testimony of defense witnesses
from Pakistan failed. 4
3
Khan was sentenced to 15 years as to Count 1. He was sentenced to 10 years as to each
of Counts 2, 3, and 4, to run concurrently with each other and consecutively with Count 1.
4
Khan also challenges as legally inadequate the notice provided to him by the
Government regarding its intent to use against him evidence obtained or derived from electronic
surveillance. See Doc. 17. Having carefully reviewed the record and the briefs, and with the
benefit of oral argument on this issue, we reject Khan’s argument without further discussion.
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We address each argument in turn.
III.
Khan first argues that the District Court erred by permitting the
Government’s translator to add bracketed words when translating the FISA-
intercepted telephone calls between Khan and Khan’s relatives in Pakistan. “We
review evidentiary rulings for an abuse of discretion.” United States v. Henderson,
409 F.3d 1293, 1297 (11th Cir. 2005). “A district court abuses its discretion if it
applies an incorrect legal standard, follows improper procedures in making the
determination, or makes findings of fact that are clearly erroneous.” Klay v.
United Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir. 2004) (quotation marks
omitted).
A.
Khan’s conversations anchored the Government’s case-in-chief, his own
words serving as powerful evidence of his guilt. After all, the Government’s
evidence indicated that Khan routinely gave specific instructions that his money be
funneled to aid Taliban fighters. Because Khan spoke in Pashto and Urdu, the
Government relied on translations performed by FBI-certified linguists to decipher
Khan’s conversations.
During discovery, the Government provided the defense with written
translations of approximately two-hundred telephone calls and forty in-person
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conversations. The defense submitted specific objections to the way in which
certain recordings were translated; the FBI linguists reviewed the objections,
accepted some, and rejected others. The parties eventually stipulated “to the
foundational requirements for admitting the unclassified calls and transcripts”
while “reserving any non-foundational objections based upon hearsay, relevance
and the like” and “allowing disputes about the translation of particular words and
phrases to be aired . . . through cross-examination or witness testimony consistent
with the rules.” The District Court then entered an order finding that the
foundation requirements for admitting the transcripts had been met and that they
were not hearsay.
Soon afterwards—and prior to trial—Khan filed a motion to strike
translations featuring bracketed words, that is, words that were not actually spoken
during the audio recordings. Khan argued that these insertions improperly
“invade[d] the province of the jury” because “[w]hen a translator adds in brackets
what was not heard on the audio [the translator is] assuming what the speaker
intended to [say] when [the speaker] made a statement.” 5
5
For example, the Government introduced a transcript of a telephone call between Khan
and his grandson, Alam Zeb. During the call, Khan asked his grandson a question. The
translation was as follows: “So are these Shagirdan [Taliban] of ours . . . are they doing
something or not?” Another statement during a phone call between Khan and his son-in-law was
translated in a similar fashion: “[O]ver there the thing [Army base] is not there, you know. So
now the Army goes [in] where Talib [Taliban] are or if they have done something earlier, like
they demolish their houses.”
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The District Court denied Khan’s motion. In so doing, however, it ordered
the Government “to call a government translator as a witness to explain based upon
their expertise how the bracketed words were prepared.”
At trial, the Government moved to enter the transcripts into evidence. The
defense objected, arguing that the translations were not “fairly and accurately
transcribed.” Outside the presence of the jury, the District Court overruled the
objection. The District Court explained:
If somebody doesn’t agree with a translation, then if that translator
who prepared it is on the stand, as part of your cross-examination you
could ask them about that. If you want to present a translator to
contest that you can do that [as well] . . . .
The District Court also reiterated its pretrial order that the Government call a
translator to explain the significance of the bracketed words.
In keeping with this directive, the Government called Moazzam Shah, an
FBI translator who worked on Khan’s case. The Government asked Shah to
explain why he used brackets in some of his translations. Shah responded that
“sometimes during the course of translating from one language to another, you
come across a word that signifies a concept or does not have a direct meaning in
the target language” and that a literal translation would therefore “mislead an
Other examples include: “Man! I had said this before that they [Taliban] have conducted
the work in a totally wrong way”; “[S]o the government says [fears thinking], ‘they [Taliban] are
trying to snatch the Government from us’”; “I tell you, may Allah destroy these pig ones . . . I
don’t think that their leaders [Taliban] are telling them to do this.”
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English reader.” Shah explained that, in performing the translations, he never
replaced words that were spoken during the course of the conversation; rather, he
augmented the literal translation with bracketed words only when he was “one-
hundred percent confident,” based on the context of the conversation, that the
addition correctly clarified what the speaker meant.
For example, the word “Shagirdan” in Pashto can mean “student”; it can also
serve as a “substitute word” for Taliban. Shah testified that he would insert the
word “Taliban” in brackets following the word “Shagirdan” when he was
confident, from the context of the conversation, that Shagirdan was used by the
speakers as a type of “code word.” This frequently occurred during conversations
about “fighting” and “lying low,” in which case the word “student” would make
little sense.
In the Court’s charge to the jury prior to deliberation, the District Court
instructed the jury as follows:
Whether the transcripts contain accurate translations of the non-
English portions of the recordings in whole or part is for you to
decide. In considering whether a transcript accurately describes the
meaning of a conversation, you should consider any testimony
presented to you regarding how and by whom the transcript was
made, as well as any testimony disputing the translation of any words
in the transcript. You may consider the knowledge, training and
experience of the translator if called as a witness, as well as the nature
of the conversation and the reasonableness of the translation in light
of all the evidence in the case.
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B.
On appeal, Khan argues that Shah “testif[ied] beyond the scope of an expert”
by using the bracketed words “to tell the jury what Mr. Khan meant” instead of
performing a literal, word-for-word translation. As we understand it, this is a
slightly retooled version of the argument Khan pressed before the District Court—
that Shah “invade[d] the province of the jury” by “telling the jury what Mr. Khan
meant instead of what he said.”
Khan seems to suggest that only literal, word-for-word translations could
have been properly admitted against him at trial. Anything more would have
invaded “matters [left] for the trier of fact alone.” Fed. R. Evid. 704(b). We do
not find this argument persuasive. Shah did what any translator would do: perform
the act of “rendering from one language . . . to another.” Webster’s Third New
Int’l Dictionary 2429 (1993). Interpreters and translators engage in a process far
more complex than the “mechanical substitution of words in one language with
their verbatim equivalent in another”; instead, taking statements in one language
and expressing them in a different language “requires a continuing exercise of
judgment and analysis of what is meant or intended to be said by the parties.”
Fernando Rochin Zazueta, Attorneys Guide to the Use of Court Interpreters, 8
U.C.D. L. Rev. 471, 472 (1975) (cited with approval in Taniguchi v. Kan Pac.
10
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Saipan, Ltd., ___ U.S. ___, ___, 132 S. Ct. 1997, 2004 n.4, 2005, 182 L. Ed. 2d
903 (2012) (discussing the distinction between translators and interpreters)); see
also Am. Translators Ass’n, Translation: Getting It Right: A Guide to Buying
Translation 22, available at
http://www.atanet.org/publications/Getting_it_right.pdf (“[Translators] are above
all effective bridges between the languages they work in; they can render the
message of the original text, with appropriate style and terminology, in their native
language.”). After all, “[a] word is not a crystal, transparent and unchanged, it is
the skin of a living thought and may vary greatly in color and content according to
the circumstances and the time in which it is used.” Towne v. Eisner, 245 U.S.
418, 425, 38 S. Ct. 158, 159, 62 L. Ed. 372 (1918) (Holmes, J.). For this reason,
courts routinely rely on the expertise of translators and interpreters to transport
these “living thoughts” from one language to another.
This is precisely what Shah did when he inserted bracketed words while
translating the audio recordings. Based on his knowledge of Urdu and Pashto, his
complete review of the recordings, and his experience and training as an FBI-
certified linguist, Shah inserted bracketed words when he was “one-hundred
percent certain” that the addition of bracketed words would faithfully clarify the
speaker’s meaning.
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As far as we understand it, Khan challenges this process under the guise of
Rule 704, but that is a poor theory on which to travel, especially given how this
case was litigated at trial. Khan could have raised a Federal Rule of Evidence 7026
objection to Shah’s qualifications as an expert witness—but he never did. The
District Court afforded defense counsel wide latitude to vigorously cross-examine
Shah about how he performed the translations. Furthermore, both the pretrial
stipulation and the District Court’s instructions during the trial permitted the
defense to put its own translations into evidence, thereby allowing the jury to make
the final decision as to which translation it found most credible. 7 See United States
v. Hogan, 986 F.2d 1364, 1376 (11th Cir. 1993). And more still, the District Court
explicitly instructed the jury that “[w]hether the transcripts contain accurate
translations of the non-English portions of the recordings in whole or part is for
6
Federal Rule of Evidence 702 permits expert testimony only if “(a) the expert’s
scientific, technical, or other specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c)
the testimony is the product of reliable principles and methods; and (d) the expert has reliably
applied the principles and methods to the facts of the case.”
7
As we have explained,
It has been said that it is within the discretion of the trial court to allow a
transcript to be used by the jury to assist the jury as it listens to the tape. . . . We
believe that the use of a transcript as a guide is analogous to the use of expert
testimony as a device aiding the jury in understanding other types of real
evidence.
United States v. Onori, 535 F.2d 938, 947 (5th Cir. 1976) (citation omitted) (quotation marks
omitted); see also infra note 9.
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you to decide.”8 In fact, we have long sanctioned the type of procedure employed
by the District Court, as well as the limiting instruction the District Court provided.
See United States v. Onori, 535 F.2d 938, 948 (5th Cir. 1976).9
Defendants who object to the manner in which a translator has performed
the difficult and delicate task of moving meaning between two languages have a
number of tools at their disposal—Rule 702, cross-examination, and limiting
instructions, to name a few. On this record, however, Khan cannot complain that
Shah improperly testified as to Khan’s ultimate mental culpability. The District
Court thus did not abuse its discretion in permitting Shah to add bracketed words
when translating Khan’s conversations.
8
Khan draws our attention to an exchange during Shah’s second day of testimony when a
juror indicated that she wanted to personally ask Shah a question about the use of bracketed
words. Although the District Court recognized that “our rules of procedure don’t allow jurors to
ask the question of witnesses,” the District Court permitted the question. The juror expressed
confusion about why, in some of the transcripts, the words “that thing” were followed by a
bracketed clarification (e.g., “that thing [Army base]”), whereas in other transcripts, the words
“that thing” were not followed by a bracketed clarification. Shah explained that he omitted
bracketed clarifications when he could not be certain precisely what “that thing” referred to from
the context of the conversation:
When you see anywhere mentioned someone says “that thing” or “this thing” and
there’s no explanation in the bracket, it means that it could be more than one
thing, and I’m not sure what exactly it was, and I’m not going to put guesswork
into the brackets until in my mind I’m certain this is exactly what it means . . . .
This testimony only bolsters our conclusion that the District Court did not abuse its
discretion. The District Court went out of its way to ensure the jury understood the logic behind
Shah’s translation techniques so that, armed with this information, the jury could evaluate Shah’s
credibility as it saw fit.
9
In Bonner v. City of Pritchard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit prior to October 1, 1981. Id. at 1209.
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IV.
Khan’s next argument is that the District Court abused its discretion in
several rulings it made during the direct and cross-examination of the
Government’s lead witness, FBI Agent Michael Ferlazzo.
A.
First, Khan claims the District Court erred by permitting Ferlazzo to testify
as an expert without the proper notice or foundation. “We review a trial court’s
evidentiary rulings on the admission of expert witness testimony for abuse of
discretion.” United States v. Jayyousi, 657 F.3d 1085, 1106 (11th Cir. 2011)
(quotation marks omitted).
1.
Ferlazzo joined the FBI in late 2009. He was assigned to work in the FBI’s
counterterrorism branch in Miami, Florida. Ferlazzo became a member of a squad
that, in his words, “specifically investigates Sunni extremist matters.” Ferlazzo
brought a wealth of prior experience to his new role as an FBI agent. He graduated
from the United States Military Academy at West Point, and he served for eight-
and-a-half years in the United States Army. He was a platoon leader in Iraq from
2004 to 2005. After he was hired by the FBI, Ferlazzo spent five months at
orientation for newly minted FBI agents, received advanced instruction in
conducting terrorism investigations, and learned on-the-job from more senior
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agents. At the time of trial, Ferlazzo had worked with the FBI for approximately
three years and had participated in more than thirty investigations.
Ferlazzo helped lead the agency’s investigation into Khan, which had begun
in 2007. As a result, he reviewed transcripts of the FISA-intercepted telephone
calls between Khan and Khan’s relatives in Pakistan, along with transcripts of the
in-person conversations between Khan and the Government’s informant. This was
no simple task. Ferlazzo examined all of the transcripts admitted against Khan at
trial, which encompassed approximately 136 hours of recorded conversations.
The Government relied heavily on Ferlazzo’s familiarity with this
voluminous record. Ferlazzo and the Government’s attorney published select
transcripts to the jury by reading Khan’s conversations aloud during the
Government’s case-in-chief. Most of these conversations were cryptic. So, after a
transcript had been read to the jury, Ferlazzo was often asked to explain the
meaning of certain words or provide context for the conversation. In short, the
Government counted on Ferlazzo—based on his role as a lead investigator—to
help the jury make sense of the evidence.
For example, during Ferlazzo’s direct examination, the Government asked
the agent to define various words that might have been unfamiliar to the jury,
including “Sunni,” “mosque,” “madrassa,” “Quran,” “Urdu,” “Pashto,” the
“Pakistani Taliban,” “Sharia law,” and “improvised explosive device.” Ferlazzo
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also offered testimony about the history, goals, and methods of the Pakistani
Taliban. The defense objected to Ferlazzo’s testimony regarding the meaning of
the terms “Sunni,” “Urdu,” and “Sharia law,” but the District Court permitted
Ferlazzo to testify about the meaning of all three. Ferlazzo also explained the
details surrounding two terrorist attacks perpetrated by the Taliban against the
United States. The defense did not raise an objection. The court then took an
hour-and-a-half recess.
After recess but outside the presence of the jury, the defense voiced concern
about Ferlazzo’s testimony. The following colloquy ensued:
DEFENSE COUNSEL: Judge, while you have a moment, I
understood that a lot of the questioning that
was going on here was background for this
witness, but now we’re moving into areas
that are really expert where they’re asking
about specific attacks without providing a
basis for it.
Are we done with that area? Are we going
to move into the facts or are we going to
continue on with this, is the question. If we
are, we’re just going to lay an objection.
PROSECUTOR: Judge, just as noted with the expert, we just
touched on those [topics] briefly. They’re
for an expert for later.
THE COURT: Okay.
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Direct examination continued, and the Government asked Ferlazzo to define
“Allah,” and “mujahideen.” The defense objected but was overruled.
The District Court eventually called the lawyers to sidebar to address an
issue not relevant to this appeal. After it was resolved, the defense again lodged an
objection to Ferlazzo’s testimony:
DEFENSE COUNSEL: We’ve just had this agent give
definitions of mujahideen and Sharia
law. There’s expert witnesses who’ve
written books on the definition of
mujahideen. So this agent who has
not been offered as an expert to just
give definitions but [their] experts are
listed, he’s simply not qualified.
THE COURT: He may not be as qualified as they
are, but he’s an expert.
Ferlazzo continued to testify. He defined the terms “apostate,” “Prophet,” “jihad,”
and “Lashker.” The defense objected to questions about the meaning of “apostate”
and “Lashker” but was overruled. Ferlazzo also identified various Pakistani
politicians, explained that the word “assembly” can refer to the legislative branch
of the Pakistani government, and briefly discussed the Iranian Revolution. The
defense objected to questioning on these topics but was again overruled.
2.
On appeal, Khan objects—for the first time—to Ferlazzo’s testimony
regarding the history, goals, and methods of the Pakistani Taliban; the meaning of
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the term “jihad”; and the Pakistani government’s offensive against the Taliban in
2009. 10 Khan reiterates objections made during the trial to Ferlazzo’s testimony
regarding the terms “Sharia law” and “mujahideen”; the structure of the Pakistani
government; the Iranian Revolution; and the identity of various Pakistani
politicians.
It is undisputed that Ferlazzo was not listed as an expert witness prior to
trial. See Fed. R. Crim. P. 16(a)(1)(G) (requiring, at the defendant’s request,
pretrial disclosure of expert witnesses and a written summary of their testimony).
Khan says Ferlazzo nonetheless testified as an expert and that the District Court
erred in permitting him to do so. See Fed. R. Evid. 702. Not true, the Government
responds: Ferlazzo actually testified as a lay witness based on his familiarity with
the Khan investigation and his “extensive review of the transcripts in this case.”
See Fed. R. Evid. 701. 11
We need not definitely resolve this disagreement. To the extent certain
aspects of Ferlazzo’s testimony fell outside the Rule 701 rubric, their admission
was harmless. “[E]videntiary and other nonconstitutional errors do not constitute
10
Ferlazzo’s testimony about the 2009 offensive was elicited by defense counsel on
cross-examination. Because Khan “induced or invited the ruling he now claims was error,” the
invited-error doctrine bars us from ruling on the merits of this argument. United States v. Love,
449 F.3d 1154, 1157 (11th Cir. 2006) (per curiam).
11
Federal Rule of Evidence 701 permits lay testimony that is “(a) rationally based on the
witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and (c) not based on scientific, technical or other specialized
knowledge within the scope of Rule 702.”
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grounds for reversal unless there is a reasonable likelihood that they affected the
defendant’s substantial rights; where an error had no substantial influence on the
outcome, and sufficient evidence uninfected by error supports the verdict, reversal
is not warranted.” United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir.
1990); Fed. R. Evid. 103(a) (providing that evidentiary errors require reversal only
when “the error affects a substantial right of the party”); Fed. R. Crim. P. 52(a)
(defining “harmless error” as “[a]ny error, defect, irregularity, or variance that does
not affect substantial rights”).
The harmless-error doctrine forecloses Khan’s argument, because both the
Government and the defense called experts who testified extensively about many
of the same topics on which Ferlazzo opined. The Government called Khuram
Iqbal, an expert on the Pakistani Taliban. Like Ferlazzo, Iqbal reviewed the
transcripts of the recorded conversations admitted against Khan. Like Ferlazzo,
Iqbal testified about the meaning of Sharia law, mujahideen, and jihad. And like
Ferlazzo, Iqbal discussed the identity of various Pakistani leaders; the structure of
the Pakistani government; the history, goals, and methods of the Pakistani Taliban;
and the Iranian Revolution. The defense called its own expert, Anita Weiss, who
also offered testimony on several of these topics.
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Taken together, Ferlazzo, Iqbal, and Weiss’s statements relayed materially
similar information to the jury. 12 Accordingly, even assuming it was error to
permit Ferlazzo’s testimony, such error “had no substantial influence on the
outcome” of the trial. Hawkins, 905 F.2d at 1493. And because “sufficient
evidence uninfected by error supports the verdict, reversal is not warranted.” Id.12
The substantive overlap is striking. Consider the following:
First, Ferlazzo characterized Sharia law as part of the Pakistani Taliban’s goal of
“replac[ing] the democratic government with an undemocratic process that is more religious, that
is ruled by religious texts.” Iqbal characterized Sharia law as part of the Pakistani Taliban’s goal
of “replac[ing] the democratically elected government with caliphate. Caliphate is a concept in
Islam. It’s a political system of Islam which is in totally contrast [sic] with democracy.”
Second, Ferlazzo explained that the terms “mujahid” and “mujahideen” can refer to
“those engaging in violent jihad, fighting.” Iqbal put it this way: “[P]eople who are engaged in
jihad.”
Third, Ferlazzo testified that terrorist organizations use the word “jihad” to refer to “using
violence . . . to obtain [the group’s] goals.” Iqbal, for his part, said that the term jihad can
“describe the systematic campaign of violence being waged by Pakistani Taliban and their
affiliated groups.”
Fourth, Ferlazzo and Weiss both identified Asif Zardari as the then-current president of
Pakistan. Ferlazzo and Weiss both testified that Nawaz Sharif was the then-former prime
minister of Pakistan. Ferlazzo also described Pervez Musharraf as a former Pakistani leader and
army general; Weiss did as well, later explaining that Musharraf overthrew Sharif during a
military coup d’état and that it was Musharraf who led Pakistan until Zardari’s election in 2008.
Fifth, Ferlazzo explained that the word “assembly” can serve as a “reference to . . . the
[Pakistani] legislative branch [which is] akin to our Congress.” As for Iqbal: “Assembly is
equivalent [to] Congress in the U.S.”
Sixth, Ferlazzo described the Pakistani Taliban as “a terrorist organization based in
Pakistan” formed in 2007 and known for “using violence . . . to achieve [its] goals,” which
include the imposition of Sharia law. Iqbal concurred, testifying that the Pakistani Taliban was
formed in 2007 and “believes that violence or armed struggle is the only way to establish Sharia
in Pakistan.”
Seventh, Ferlazzo and Iqbal both testified that Ayatollah Khomeini led the Iranian
Revolution.
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B.
Second, Khan contends the District Court erred by allowing Ferlazzo to
testify as a summary witness. Khan raises this argument for the first time on
appeal, so we review it for plain error. United States v. Smith, 459 F.3d 1276,
1287 (11th Cir. 2006). “To find plain error, there must be: (1) error, (2) that is
plain, and (3) that has affected the defendant’s substantial rights.” United States v.
Edmond, 780 F.3d 1126, 1130 (11th Cir. 2015).
Citing United States v. Rosado-Perez, 605 F.3d 48 (1st Cir. 2010), Khan
argues that Agent Ferlazzo “essentially testified as to the contents of the audio in
summary form.” We disagree.
Of course, “prosecutors should not permit investigators to give overview
testimony, in which a government witness testifies about the results of a criminal
investigation, usually including aspects of the investigation the witness did not
participate in, before the government has presented supporting evidence.” Rosado-
Perez, 605 F.3d at 55. But that is not what happened here. Instead of jumping the
gun and asking Agent Ferlazzo to “give overview testimony . . . about the results
of a criminal investigation,” the prosecution “laid a foundation that [Ferlazzo] had
personal knowledge” of the recorded conversations because of his role as a lead
investigator and his review of the admitted transcripts. Id.; cf. Jayyousi, 657 F.3d
at 1102 (“We have allowed a lay witness to base his opinion testimony on his
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examination of documents even when the witness was not involved in the activity
about which he testified.”). Only after the proper foundation had been laid—and
only after the transcripts had been published to the jury—did Ferlazzo offer his
testimony. See United States v. Atkins, 746 F.3d 590, 601 (5th Cir. 2014) (finding
no abuse of discretion where a Government agent’s testimony “came only as the
evidence was presented”). This hardly amounts to “a vice that equates to
summarizing the Government’s case-in-chief.” Id.At no point did Agent Ferlazzo testify as a summary witness. The District
Court thus did not abuse its discretion.
C.
Third, Khan argues that the District Court erred by limiting the defense’s
ability to thoroughly cross-examine Agent Ferlazzo.
The Sixth Amendment’s Confrontation Clause provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI. “The main and essential purpose
of confrontation is to secure for the [defendant] the opportunity of cross-
examination.” United States v. Baptista-Rodriguez, 17 F.3d 1354, 1366 (11th Cir.
1994) (alteration in original) (quotation marks omitted). In the crucible of cross-
examination, we vet testimony for its accuracy, weed out perjury, and afford the
criminal defendant a measure of constitutional dignity. No wonder Wigmore
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famously extolled cross-examination as “the greatest legal engine ever invented for
the discovery of truth.” 5 John Henry Wigmore, Evidence in Trials at Common
Law § 1367 (James H. Chadbourne ed., 1974).
Our circuit has been particularly solicitous of a defendant’s confrontation
rights when it comes to the Government’s lead witness at trial. United States v.
Phelps, 733 F.2d 1464, 1472 (11th Cir. 1984) (“Cross-examination of a
government ‘star’ witness is important, and a presumption favors free cross-
examination on possible bias, motive, ability to perceive and remember, and
general character for truthfulness . . . .” (citations omitted)). That said, the
Confrontation Clause does not safeguard “cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.” Delaware v.
Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294, 88 L. Ed. 2d 15 (1985) (per
curiam). District courts “retain 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.” Delaware v. Van Arsdall, 475 U.S. 673,
679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674 (1986); United States v. Maxwell, 579
F.3d 1282, 1296 (11th Cir. 2009) (“[A] defendant can only cross-examine a
prosecution witness if the information sought to be elicited [is] relevant.” (second
alteration in original) (quotation marks omitted)); Baptista-Rodriguez, 17 F.3d at
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1370–71; Phelps, 733 F.2d at 1472. “The test for the Confrontation Clause is
whether a reasonable jury would have received a significantly different impression
of the witness’ credibility had counsel pursued the proposed line of cross-
examination.” United States v. Garcia, 13 F.3d 1464, 1469 (11th Cir. 1994). We
review for an abuse of discretion Khan’s claims that the District Court erred in
limiting the scope of his cross-examination. Maxwell, 579 F.3d at 1295.
Khan advances two arguments in this regard. Khan contends the District
Court should have permitted him to more fully cross-examine Ferlazzo regarding
(1) the Government’s informant; and (2) an investigative report written by the
Pakistani police and disclosed to the defense pursuant to Brady v. Maryland, 373
U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
1.
We begin with the informant. Neither the Government nor the defense
called the informant to testify as a witness at trial. Agent Ferlazzo was not one of
the informant’s handlers, but he nevertheless testified about Khan’s relationship
with the informant based on his involvement in the investigation.
a.
Playing the role of a wealthy Taliban sympathizer, the informant curried
favor with Khan by helping him run errands and attend medical appointments.
Khan and the informant began communicating at least as early as May 2010: a
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May 6, 2010, intercepted phone call marks the first time Khan mentioned the
informant during a conversation with a relative in Pakistan. From May to mid-
June 2010, the informant did not wear a wire. 13 The first recorded conversation
between Khan and the informant admitted at trial took place on June 16, 2010.
These conversations often involved a discussion of current events where Khan
would frequently express his support for the Taliban. At some point, the informant
also promised to donate $5,000 to Khan’s madrassa. Khan’s interactions with the
informant ended in October 2010.
On cross-examination, defense counsel asked Ferlazzo when the informant
began working for the FBI. The Government requested a sidebar. The
Government informed the District Court that Ferlazzo could not testify about
events between the informant and Khan prior to May 2010. That information, the
Government contended, was classified pursuant to the Classified Information
Procedures Act (“CIPA”), 18 U.S.C. app. III §§ 1–16. The District Court
instructed defense counsel to limit questions about the informant’s relationship
with Khan to the period from May to October 2010, pending an in camera, ex
13
This was standard operating procedure. As Ferlazzo explained, Government
informants generally do not “start talking about substantive things right away” with potential
suspects; only when the informant “had developed a relationship with Hafiz Khan” did the FBI
begin to record their conversations.
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parte hearing as prescribed by CIPA. 14 The District Court further clarified that
defense counsel could not ask when the informant began working on Khan’s case.
The defense complied, continuing the cross-examination and eliciting, among other
things, that the informant earned $126,000 for his cooperation with the
Government during the May–October 2010 time frame; that the informant had
received unemployment compensation before and after working for the FBI; and
that the informant filed for bankruptcy in 2002.
The next day, following a CIPA hearing, the District Court announced its
ruling outside the presence of the jury:
THE COURT: I am ruling that any matters relating to the
Confidential Human Source [the informant]
prior to May 2010, may not be inquired
about because they are classified; and
separately, I find that there are no Brady
materials.
I find that the information is not relevant, is
hearsay, and because it is hearsay, the
Government has no obligation to provide
any Giglio during that time period
concerning the [informant] . . . .
DEFENSE COUNSEL: That is over defense objection, Judge.
14
CIPA § 8(c) provides, in pertinent part: “During the examination of a witness in any
criminal proceeding, the United States may object to any question or line of inquiry that may
require the witness to disclose classified information . . . . Following such an objection, the court
shall take such suitable action to determine whether the response is admissible as will safeguard
against the compromise of any classified information.”
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This issue arose once more when the defense again asked Ferlazzo to discuss
Khan’s relationship with the informant outside the May–October 2010 time frame:
DEFENSE COUNSEL: Agent, are there any other informants
or agents that were investigating Mr.
Khan or his family during the course
of this investigation?
PROSECUTOR: Objection, Your Honor. Prior rulings.
THE COURT: Sustained.
DEFENSE COUNSEL: If there were any other informants or
agents on this case during that time,
you can’t tell us, can you?
PROSECUTOR: Objection, Your Honor. Prior rulings.
THE COURT: Sustained.
b.
Khan presents us with two narrow evidentiary arguments, both of which we
can resolve with dispatch under the Federal Rules of Evidence. 15
15
CIPA does not alter the machinery of evidence law. United States v. Baptista-
Rodriguez, 17 F.3d 1354, 1363 (11th Cir. 1994) (“CIPA does not create new law governing the
admissibility of evidence.”). Khan makes vague reference to procedural violations of CIPA, but
his arguments lack merit. For example, Khan suggests that it was improper for the District Court
to have conducted an in camera, ex parte hearing following the Government’s CIPA-based
objection during trial. CIPA contemplates such a hearing, and the District Court did not err in
holding one. United States v. Campa, 529 F.3d 980, 994–95 (11th Cir. 2008); United States v.
Kilmavicius-Viloria, 144 F.3d 1249, 1261 (9th Cir. 1998) (“[E]x 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 information. . . . Such a
hearing is appropriate if the court has questions about the confidential nature of the information
or its relevancy.” (citation omitted)). Khan also believes it was error for the District Court to
prevent him from asking about this information altogether. Instead, Khan says he should have
been provided with an unclassified summary of the otherwise classified testimony Ferlazzo
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First, Khan tells us he should have been permitted to cross-examine Ferlazzo
regarding the duration of the unrecorded contacts between him and the informant
prior to May 2010. Khan’s theory appears to be that such information would have
demonstrated that he made false statements to the informant about sympathizing
with the Taliban in an attempt to secure the informant’s $5,000 donation to the
madrassa.
That is implausible. Whether Ferlazzo testified that Khan and the informant
maintained a relationship for two weeks or two years does not somehow make it
more likely that Khan lied to the informant, simply motivated by money. See Fed.
R. Evid. 401(a) (“Evidence is relevant if it has any tendency to make a fact more or
less probable than it would be without the evidence.”). Besides, Khan testified
extensively about his interactions with the informant. And Khan has never made
an entrapment defense. As a result, we cannot say the District Court abused its
discretion in ruling that cross-examination about such information was irrelevant.
Second, Khan insists that asking Ferlazzo about the existence of other FBI
informants had the potential to bolster Khan’s credibility. This line of inquiry
would have rested beyond the scope of direct examination and would not have
involved “matters affecting the [testifying] witness’s credibility,” Fed R. Evid.
would have given on cross-examination. Nothing in the text of CIPA necessarily compels this
result. Khan has not cited to any case—and we cannot find one—requiring the disclosure of an
unclassified summary under such circumstances.
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611(b)—that is, Agent Ferlazzo’s. See Van Ardsdall, 475 U.S. at 680, 106 S. Ct. at
1436 (“[A] criminal defendant states a violation of the Confrontation Clause by
showing that he was prohibited from engaging in otherwise appropriate cross-
examination designed to show a prototypical form of bias on the part of the witness
. . . .” (emphasis added)). Excluding questions aimed to bolster Khan’s credibility
during the cross-examination of Ferlazzo was a choice well within the District
Court’s discretion.
Alternatively, Khan says the presence of other FBI informants could have
impeached Ferlazzo’s credibility. Khan has not explained how, other than to
speculate about a “Rehmit Ghul.” The record does not furnish any details about
Ghul other than those Khan offered in his testimony: that Ghul encouraged him to
collaborate with the informant. Ferlazzo testified that he had never heard of Ghul.
It is anyone’s guess how the presence of other informants makes it more or less
likely that Ferlazzo was aware of Ghul’s existence. We also note that the defense
never articulated this theory of impeachment before the District Court. In any
event, we cannot imagine how “a reasonable jury would have received a
significantly different impression of [Ferlazzo’s] credibility had counsel pursued
the proposed line of cross-examination.” Garcia, 13 F.3d at 1469. On the record
before us, we find that the District Court did not abuse its discretion in curtailing
the defense’s cross-examination on this point.
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2.
Khan’s second argument concerns a report authored by the Pakistani police
detailing an investigation into Khan’s contacts in Pakistan. In keeping with its
Brady obligations, prosecutors disclosed excerpts of the report to the defense
during discovery in April 2012. The United States neither requested nor
participated in the investigation that produced the report, and the record does not
reveal how the United States came into its possession.
The report relays various statements Khan’s family members and associates
made to the Pakistani police. These statements typically describe how they spent
the money Khan wired them from Miami. For example:
In an interview in Pakistan, Inayatullah stated that his father-in-law,
Hafiz Khan, sent money from the United States as the share of his
daughter Husna. Inayatullah stated that he invested the money in a
chips factory, on purchasing a piece of land on which he built a house
in Nowshera [a city in Pakistan], and on the medical treatment of his
wife who is suffering from heart disease.
Given the material-support charges pending against Khan, the report clearly
contains exculpatory information; after all, statements therein indicate that Khan’s
various associates used his money not to aid the Taliban—as the Government
argued at trial—but rather to purchase land or care for sick relatives, among other
things. Excerpts of the report disclosed to the defense mention, moreover, that the
Pakistani police ran a public-records search on Abdul Jamil (Khan’s nephew) and
Alam Zeb (Khan’s grandson) but found that neither individual maintained ties with
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the Taliban. And in discussing Noor Muhammad (one of Khan’s contacts in
Pakistan), the report also claimed that “law enforcement advised that no links with
militants or any proscribed organizations were established during the course of an
enquiry in Karachi, Pakistan.”
Although favorable to Khan’s defense, this information far from exonerates
him—or anyone else, for that matter. Decidedly, the report furnishes no details
about the nature or extent of the Pakistani police’s on-the-ground investigation:
who conducted it, why it was conducted, what it entailed. And it does not offer
any conclusions regarding Khan’s culpability, the credibility of the interviewees,
their demeanor, or their motives.
Almost a year after the report’s disclosure, the defense moved midtrial to
compel the production of the entire, original report. The District Court granted the
motion in part. It described the Government’s disclosure as “detailed and
generally complete” but required the Government to release to the defense “three
brief additional excerpts from the report[] that may constitute Brady material.”16
But Khan never tried to admit this document into evidence. We suspect this is
16
As far as we understand it, Khan’s opening brief suggests that the District Court erred
in denying this motion. But the District Court did not deny this motion—it granted it in part. To
the extent Khan argues that the District Court erred in granting the motion only in part, we deem
the argument waived, because Khan has not supported his assertion with an explanation or
citation to authorities. United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003)
(collecting cases); cf. Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015)
(“The first task of an appellant is to explain to us why the district court’s decision was wrong.”).
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because the Brady disclosure itself contains several layers of hearsay—what the
interviewees said, what the Pakistani police report said they said, and what the
Government’s Brady disclosure said the Pakistani police report said the
interviewees said—which would have rendered the document inadmissible as
substantive evidence at trial. See Fed. R. Evid. 802, 805.
So Khan tried a different tack. Even though the Pakistani report had never
been discussed, defense counsel sought to cross-examine Ferlazzo about the
contents of the report. The following exchange ensued:
DEFENSE COUNSEL: Are you aware that the Pakistani
government investigated these people
[Khan’s contacts] and cleared them
from being connected to the Taliban
at all? Are you aware of that?
FERLAZZO: There was an investigation. Whether
or not they have been cleared is a
different matter.
DEFENSE COUNSEL: It is your position they haven’t been
cleared?
FERLAZZO: Who?
DEFENSE COUNSEL: Any of the people who you are
claiming are Taliban in this case that
are connected to Mr. Khan, any of
them.
FERLAZZO: There are still open indictments in
Pakistan, and to go back to
extradition—
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DEFENSE COUNSEL: There are open indictments? I’m
sorry. I don’t understand that term as
you just said it. Explain that.
FERLAZZO: FIRs.17
DEFENSE COUNSEL: There are open FIRs in Pakistan?
FERLAZZO: That’s correct.
DEFENSE COUNSEL: So we are going back to at least when
Mr. Khan got arrested, May 14, 2011.
From then until now, you are saying
the Pakistani government is still
investigating and they have made no
conclusions. Is that your position?
PROSECUTOR: Your Honor, we are going to need to
have a brief sidebar.
THE COURT: No. Do you have an objection?
PROSECUTOR: Yes. Relevance.
THE COURT: Sustained.
DEFENSE COUNSEL: In your investigation, you are aware
that—that Ali Rehman [Khan’s
business associate] was investigated
by the Pakistani government, correct?
17
In Pakistan, an “FIR,” or “first information report,” is “a written document prepared by
the police when they receive information about the commission of a cognizable offence.” Centre
for Peace Development Initiatives in Pakistan, First Information Report: A Guide for Citizens 2,
available at http://www.nipsa.in/pakistan/resources/first-information-report-a-guide-for-citizens-
centre-for-peace-and-development-initiative-2006.html; cf. Barapind v. Enomoto, 360 F.3d
1061, 1065 (9th Cir. 2004) (describing the first information report in India as “prepared by the
Head Constable or other authorized officer in the police station having territorial jurisdiction
over the offense” and “[setting] forth the facts regarding the case and the specific violation of the
Indian Penal Code and other statutes”).
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PROSECUTOR: Objection, Your Honor. Relevance.
THE COURT: Sustained.
Khan assigns error to the District Court’s decision to sustain the
Government’s two relevance-based objections. We are unpersuaded. Before the
Government objected to this line of questioning, defense counsel’s cross-
examination had already established that the Pakistani government investigated
Khan’s family and business associates and that those individuals had not been
arrested. This information does not strike us as particularly relevant to begin with,
so the District Court acted well within its discretion in precluding further
discussion of the repetitive and the marginally relevant. Van Arsdall, 475 U.S. at
679, 106 S. Ct. at 1435. After all, the Pakistani police report was beyond the scope
of direct examination. See Fed. R. Evid. 611. The report was not in evidence.
And contrary to what Khan suggests, it offered no conclusions; it simply relayed
hearsay statements. As a result, the District Court did not abuse its discretion.
V.
We proceed to Khan’s third major argument—that the District Court erred in
denying him a continuance or a mistrial after the Internet connection supporting
live video teleconferencing from Pakistan failed midtrial.
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A.
To counter the Government’s narrative that he sent money overseas to aid
the Taliban, Khan sought to procure the testimony of those living in Pakistan to
whom he wired financial support. In short order, the defense, the prosecution, and
the District Court found themselves in something of an international quagmire.
1.
It was June 2012—six months before the start of the trial—when Khan
moved the District Court for leave to conduct depositions in Pakistan of three of
his codefendants, Ali Rehman, Amina Khan, and Alam Zeb. These three fugitives
remained in Pakistan after efforts to extradite them to the United States failed. See
supra Part I. Khan also moved the District Court for leave to depose one
unindicted coconspirator and one fact witness, both of whom resided in Pakistan as
well. Khan argued that these witnesses were unavailable to testify in the United
States and would provide testimony highly material to his defense. Their
testimony would, Khan claimed, “[d]ispel misconceptions” about statements Khan
made during FISA-intercepted telephone calls, “explain how the money sent by
[Khan] was used,” and “render first-hand accounts of the conditions in Pakistan
during the time period charged in the indictment.”
Federal Rule of Criminal Procedure 15 offered Khan a mechanism to obtain
their testimony. That rule permits depositions in criminal cases “in order to
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preserve testimony for trial” because of “exceptional circumstances and in the
interest of justice.” Fed. R. Crim. P. 15(a)(1). Such circumstances exist when (1)
the witnesses are unavailable to testify at trial, (2) their testimony is material, and
(3) countervailing factors do not “render taking the deposition[s] unjust to the
nonmoving party.” United States v. Ramos, 45 F.3d 1519, 1522–23 (11th Cir.
1995). In his Rule 15 motion, Khan argued that these three factors counseled in
favor of permitting the depositions to go forward.
The Government opposed the motion. The Government argued that the
defense had not come forward with enough evidence to support the “exceptional”
showing required to justify a Rule 15 deposition, particularly one conducted in a
foreign country. E.g., United States v. Alvarez, 837 F.2d 1024, 1029 (11th Cir.
1988) (“Foreign deposition testimony, because of the absence of a sanction for
perjury, is suspect.”). More fundamentally, the Government also sounded
concerns about the logistical difficulties that would confront both the defense and
the prosecution if in-person depositions were to be taken on Pakistani soil.
Complications abounded. For example, the Department of Justice informed
the United States Attorney’s Office in the Southern District of Florida that the
proposed Rule 15 depositions required prior approval from the government of
Pakistan. United States officials attending the depositions, moreover, would need
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to obtain diplomatic passports and Pakistani visas, a process that was estimated to
take ten to twelve weeks.
And where, exactly, would these depositions take place? Ordinarily, a
United States embassy or consulate can host foreign Rule 15 depositions. But
because Khan sought to depose three of his fugitive codefendants, the United
States Attorney’s Office informed the District Court that “for security reasons, the
. . . deponents would not be allowed to enter the U.S. embassy [in Islamabad,
Pakistan] for any reason, for fear of attack, and to prevent them from observing the
layout of the Embassy.” If the three proposed deponents did enter the embassy,
they “would be turned over to Pakistani law enforcement, to be held for possible
extradition to the United States, pursuant to an Interpol arrest warrant pending
against them.”
For these reasons, the depositions would have to be held at a private
location. But this outcome, the Government argued, would risk endangering any
American official in attendance, particularly given that “these proposed
depositions would be of Pakistani Taliban sympathizers, thus making U.S. officials
associated with these depositions even larger targets for militants . . . .”
The District Court held two evidentiary hearings on the matter. In response
to the Government’s suggestion that the defense obtain letters rogatory to secure
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the foreign depositions,18 defense counsel insisted that “we contacted the Pakistani
Consulate and we do not need letters rogatory. . . . [W]e do not need the assistance
of the Pakistani government.” By contrast, the Government contended that it had
advised the defense about how to obtain letters rogatory and that any Rule 15
depositions would require explicit approval from the government of Pakistan.
2.
Despite the Government’s misgivings, and in an extraordinary bid to
safeguard Khan’s right to a fair and full trial, the District Court granted Khan’s
Rule 15 motion. The District Court found that Khan had established the type of
“exceptional circumstances” contemplated by Rule 15 but that “due to security
concerns . . . it would be unjust to require the prosecutors in this case to travel to
Pakistan to take these depositions.”
So the District Court fashioned a compromise. In its order, the District
Court explained that it would accommodate the Government’s security concerns
18
The Federal Rules of Criminal Procedure require Rule 15 depositions to “be taken and
filed in the same manner as a deposition in a civil action.” Fed. R. Crim. P. 15(e). The Federal
Rules of Civil Procedure, in turn, permit depositions to be taken in a foreign country “under a
letter of request, whether or not captioned a ‘letter rogatory.’” Fed. R. Civ. P. 28(b)(1)(B).
A “letter rogatory,” or “letter of request,” is “[a] document issued by one court to a
foreign court, requesting that the foreign court (1) take evidence from a specific person within
the foreign jurisdiction . . . and (2) return the testimony . . . for use in a pending case.” Black’s
Law Dictionary 988 (9th ed. 2009); see also 22 C.F.R. § 92.54. The Department of State has
statutory authority to transmit letters rogatory through diplomatic channels to the appropriate
foreign tribunal or agency. 28 U.S.C. § 1781(a). Alternatively, 28 U.S.C. § 1781(b)(2)
empowers the federal courts to transmit such letters.
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by having the depositions broadcast live, during trial, and before the jury using
video-teleconferencing technology. This way, the prosecutors could participate in
the depositions without traveling to Pakistan, and Khan could present a full defense
by examining these material witnesses and having them testify about how they
used the money he sent them.
The District Court attached several conditions to this arrangement. First,
the District Court ordered the defense, by December 28, 2012, to submit to the
Court “evidence . . . showing that the Pakistan government explicitly (a) permits
these depositions to be held or (b) acknowledges that it is aware of these
depositions and that no official permission is needed for them to occur.” The
rationale behind this requirement: “[T]he Court does not want all the preparations
for the depositions to be laid . . . only to have the depositions fall through at the last
minute because the Pakistan government will not allow them to occur.” Second,
the District Court ordered that the depositions be conducted at a facility in
Islamabad that would support live, encrypted video teleconferencing with three
cameras, “one showing the witness testifying in Pakistan, one showing the room
where the deposition is held, and one in the Miami federal courtroom that will
show the government’s attorney conducting the examination.” Third, the District
Court required the presence of “one or more Pakistani officials that either alone or
together are authorized to administer an oath and verify the identity of the
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witnesses.” The District Court scheduled the depositions to begin on February 4,
2013, from 9:00 a.m. to 6:00 p.m. “every day—including weekends—until they
finish.” It stressed that “time is of the essence” and that “[t]here will be no more
accommodations.”
On December 20, 2012, the defense submitted evidence of compliance with
the District Court’s order. This evidence came in the form of an affidavit from a
Pakistani lawyer, Atif Khan, who was involved in Hafiz Khan’s defense as local
counsel. In his affidavit, Atif Khan testified that, based on his communications
with Pakistani government officials, “no . . . permission or lack of permission [to
conduct the depositions] is obtainable from the Government of Pakistan.” He went
on to state, however, that “U.S. and state officials participating in depositions in
Pakistan must first obtain permission from the Government of Pakistan.”
Clearly, the defense had failed to comply with the District Court’s
instructions. The defense did not provide evidence that the government of Pakistan
either approved of the depositions or was affirmatively aware they would take
place. Instead, the defense submitted a contradictory affidavit of a local lawyer
offering vague assurances from unnamed Pakistani officials and his “own
independent research of the local laws.”
At a pretrial hearing conducted on December 26, 2012, the District Court
expressed its frustration, describing the affidavit as containing “exactly the kind of
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ambiguity I was trying to avoid.” “I wanted something from the government of
Pakistan,” the District Court admonished, “not some lawyer who said, ‘I spoke to
somebody and they told me that.’” Defense counsel countered: “They
[government of Pakistan officials] made it clear that if the government of Pakistan
is not a party [to the depositions], they don’t care one way or the other, and they’re
not going to put anything down saying anything.” For its part, the U.S. Attorney’s
Office attempted to communicate with Pakistani authorities through a local FBI
legal attaché, only to confirm what they had been telling the defense and the
District Court all along—that the Rule 15 depositions would require prior approval
by the Pakistani government. Prosecutors also tried to send a diplomatic note,
through the Department of State, to alert Pakistani officials to the depositions.
When pressed by the District Court, defense counsel stated unequivocally that “no
one over there [in Pakistan] is going to stop the depositions. If that’s the issue, like
the Pakistani government is going to march in and shut this thing down, there’s no
indication of that at all.”
Not so fast, prosecutors cautioned. The Government continued to voice
apprehension about the clandestine nature of the depositions; the risk that one or
more of the deponents—all three of whom were fugitive codefendants in the
case—could be arrested should they appear to testify; the cost of financing the
video teleconferencing; and the possibility that American involvement with
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individuals who allegedly maintained ties with the Taliban could cause a
“diplomatic incident.” But with defense counsel’s assurances in mind, and out of
an abundance of caution, the District Court ruled that the depositions would
proceed.
Having already failed once to comply with the District Court’s Rule 15
order, the defense then upped the ante during the trial itself. On January 23,
2013—well after trial had already begun—Khan moved to convert six Rule 17
witnesses 19 into Rule 15 deponents, because the witnesses could not successfully
be brought into the United States to testify at trial. The Government opposed the
motion, but after the defense provided a detailed recitation of the testimony the
witnesses would offer, the District Court permitted the Rule 17 witnesses to testify
from Pakistan.
3.
This extensive pretrial and midtrial wrangling was for naught. The video-
teleconferencing technology worked for all of a day, enabling the defense to call
one witness. On February 12, 2013, in the middle of the defense’s direct
examination of a second witness, the Internet connection failed, and the federal
19
Federal Rule of Criminal Procedure 17 provides, in pertinent part: “Upon a defendant’s
ex parte application, the court must order that a subpoena be issued for a named witness if the
defendant shows an inability to pay the witness’s fees and the necessity of the witness’s presence
for an adequate defense. Fed. R. Crim. P. 17(b).
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courtroom in Miami could no longer see or hear the testimony of the Rule 15
deponents in Pakistan.
The District Court dismissed the jury to confer with the parties. Defense
counsel, speaking on a cell phone from Pakistan, reported that Pakistani
government officials had “suddenly” appeared at the hotel where the depositions
were taking place and that hotel staff informed him that the internet-protocol
address supporting the live video teleconferencing had been blacklisted by the
Pakistani Telecommunications Authority. The defense seemed to blame the
prosecution, who had mentioned the location of the depositions during the cross-
examination of the defense’s first Rule 15 deponent. Defense counsel said that
“[u]p until [the disclosure of the deposition location], we had absolutely no
interference or contact at all with any of the Pakistani government security
people.” 20 The District Court responded:
20
Although defense counsel seemed to suggest during trial that prosecutors may have
caused the Internet connection to fail, Khan has not argued since then that the prosecution played
any role whatsoever in foiling the video-teleconferencing technology. To the contrary, the
evidence indicates that prosecutors went out of their way to help facilitate the Rule 15
depositions by, among other things, sending a diplomatic note through the Department of State,
contacting the FBI legal attaché in Pakistan, and assisting the District Court and the defense to
explore other options when it became clear that taking the depositions in Pakistan was no longer
viable.
Khan argues—for the first time in his reply brief—that the Government had an
affirmative constitutional obligation to assist Khan by obtaining visas or requesting parole for the
proposed witnesses, including his three fugitive codefendants, so they could testify in the United
States. But “[a]s we repeatedly have admonished, arguments raised for the first time in a reply
brief are not properly before a reviewing court.” Herring v. Sec’y, Dept. of Corrs., 397 F.3d
1338, 1342 (11th Cir. 2005) (alteration omitted) (quotation marks omitted). We therefore
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That suggests to me that we’re trying to do this in a way keeping it
secret from the Pakistani government and my order originally
specifically said not only do they have to know about it, but we want
something back [from them] affirmatively saying that they either
agree with it or they acknowledge that it can happen and they don’t
care.
. . . . [M]y order said I want something from the Pakistani government
so we don’t waste our time and go through this exercise and have
something like this happen.
You told me you couldn’t get something from the government, so I
again bent over backwards to help you out and I accepted the affidavit
from your lawyer and said, “Okay, we’ll let it go forward because he
spoke to somebody in the government.” So it’s totally contrary to the
purpose of what we’re trying to do here, to say this thing was thwarted
because the Pakistani government found out the location. It’s
supposed to be open and notorious to them.
The District Court brought the jury back into the courtroom, explained that the
video feed from Pakistan had been lost, and dismissed the jurors for the remainder
of the afternoon.
Khan moved the following day—February 13, 2013—to relocate the
depositions to another country. The District Court gave the defense additional time
to secure nonimmigrant visas for the witnesses to enter the United States or, in the
alternative, to travel to the United Arab Emirates (“UAE”). The District Court
scheduled a status conference for February 15, and instructed the defense that any
remaining depositions had to begin no later than February 19.
decline to consider this constitutional argument, particularly given that Khan’s raising it so late
on appeal has deprived the Government of an opportunity to brief the issue.
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At the February 15 status conference, defense counsel told the District Court
that hotel officials had instructed him to obtain a no-objection certificate (“NOC”)
from the local authorities to reestablish the Internet connection. The defense
informed the District Court that efforts to obtain an NOC were in progress and that
the defense was awaiting one final signature before the Internet connection would
return. As for obtaining visas to the United States or the UAE, defense counsel
asserted that he was “trying to explore every option to get this testimony.”
The prosecution, however, strongly objected to taking the depositions in the
UAE at the last minute, without that government’s knowledge or consent; doing
otherwise risked creating “a serious diplomatic incident.” Given the “sensitivity of
the relationship” between the United States and the UAE, prosecutors cautioned
that obtaining visas and permission to take deposition testimony “would require
significant high-level reviews and communications even before a formal request
would be made.”
In light of this evidence, the District Court concluded that Rule 15
depositions in the UAE were “off the table.” It then presented the defense with an
ultimatum: the defense could continue to make efforts to reestablish the Internet
connection in Pakistan, but no further continuances would be granted. The trial
would move forward on February 19.
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On February 19, the defense informed the District Court that it was unable to
obtain final approval of the NOC. Recognizing that the District Court had already
ruled it would not grant a continuance, the defense moved for a mistrial. The
District Court denied the motion orally and in writing:
The Court has done everything possible to accommodate the defense.
In spite of these efforts, forces beyond the control of the Court have
prevented these depositions from being able to be concluded. There is
absolutely no evidence that the Government did anything to thwart
this process. To the contrary, the evidence is that the Government has
engaged in only good faith efforts to comply with the Court’s request
for assistance in this matter. The Court notes that all of these
problems could have been avoided had the Defendant complied with
the Court’s initial condition that the Defendant obtain the explicit
approval of the Pakistani government before the depositions started.
The District Court also denied as moot Khan’s motion to relocate the Rule 15
depositions to another country, explaining that “defense counsel chose to try to
reestablish a live videoconference feed with Islamabad, Pakistan, and take the
witnesses’ testimony there rather than make arrangements to take the witnesses’
testimony in a third country.” 21
B.
1.
Although the denial of a continuance may be “so arbitrary as to violate due
process,” Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 850, 11 L. Ed. 2d
21The defense was never able to obtain visas for the proposed witnesses.
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921 (1964), this decision is ordinarily left to the sound discretion of the district
court. “Trial judges necessarily require a great deal of latitude in scheduling trials.
Not the least of their problems is that of assembling the witnesses, lawyers, and
jurors at the same place at the same time, and this burden counsels against
continuances except for compelling reasons.” Morris v. Slappy, 461 U.S. 1, 11,
103 S. Ct. 1610, 1616, 75 L. Ed. 2d 610 (1983).
Where, as here, the district court has denied a continuance to obtain
testimony, we consider four factors in evaluating whether the district court abused
its discretion: (1) the diligence of the moving party in obtaining the testimony; (2)
“the probability of obtaining the testimony within a reasonable time”; (3) “the
specificity with which the defense was able to describe the witness’s expected
knowledge or testimony”; and (4) the nature of the proffered testimony, that is,
“the degree to which such testimony was expected to be favorable to the accused,
and the unique or cumulative nature of testimony.” United States v. Wright, 63
F.3d 1067, 1071 (11th Cir. 1995) (quotation marks omitted).
The first factor—the diligence of the moving party in obtaining the
testimony—cuts against Khan. From the beginning, defense counsel repeatedly
assured the District Court that the Rule 15 depositions would not require explicit
approval from the government of Pakistan. From the beginning, prosecutors
repeatedly warned the District Court that the Rule 15 depositions would require
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such approval. The Government even offered the defense an alternative: letters
rogatory. But the defense insisted it did not need letters rogatory either.
Despite the presence of compelling reasons to deny Khan’s Rule 15 motion,
the District Court went out of its way to accommodate the defense. To prevent the
testimony from falling through at the last minute, the District Court ordered the
defense to submit to the Court “evidence . . . showing that the Pakistan government
explicitly (a) permits these depositions to be held or (b) acknowledges that it is
aware of these depositions and that no official permission is needed for them to
occur.”
The defense failed to comply with the District Court’s order while still
making a strategic decision to proceed with the depositions in the absence of
official government of Pakistan approval or acknowledgment. Exacerbating this
problem, the defense chose, midtrial, to increase its reliance on the foreign
testimony by moving to convert six of its Rule 17 witnesses into Rule 15
deponents. The defense ran the risk that, in failing to obtain official approval, the
depositions would be shut down. And because the defense spent so much time and
energy securing testimony through live video teleconferencing, it made another
strategic choice: to forgo full consideration of alternative methods of obtaining the
testimony that may have proven more reliable, such as letters rogatory or
nonimmigrant visas into the United States or another country. After all, when the
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Internet connection failed, the defense had no viable alternative to the Rule 15
depositions precisely because it had placed so much stock in a method of testimony
the District Court and the prosecution had warned about from the get-go.
The second factor—“the probability of obtaining the testimony within a
reasonable time”—weighs against Khan as well. Wright, 63 F.3d at 1071. To be
sure, the defense informed the District Court that it was just one signature away
from obtaining an NOC and reestablishing the Internet connection. But by the
time the District Court ruled it would not grant another continuance, approximately
a month had passed since the Government rested its case-in-chief. Throughout the
course of this litigation, moreover, the defense’s assurances regarding the Pakistan
depositions had routinely proven inaccurate. And the defense still had not
produced an official statement from the government of Pakistan, as the District
Court had long requested. In the face of such overwhelming uncertainty, who
knows how much longer it would have taken to get the Internet back up and
running? A day? A week? A month?
We readily concede that the third and fourth factors—“the specificity with
which the defense was able to describe the witness’s expected knowledge or
testimony” and “the degree to which such testimony was expected to be favorable
to the accused”—point in Khan’s favor. See id. The Rule 15 deponents would
have offered testimony highly material to Khan’s defense. We do not doubt that
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defense counsel acted in good faith in attempting to secure that testimony despite
some very challenging circumstances. But this appeal comes to us in an abuse-of-
discretion posture, which means we must pay respect to the district court’s on-the-
ground decisions. Indeed, “[t]he abuse of discretion standard of review recognizes
that for the matter in question there is a range of choice for the district court and so
long as its decision does not amount to a clear error of judgment we will not
reverse.” Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir. 2004)
(citation omitted) (quotation marks omitted).
Given that standard, and given the totality of the circumstances, we conclude
that the District Court did not abuse its discretion when it denied Khan a
continuance.
2.
Like the denial of a continuance, the denial of a mistrial is also subject to
abuse-of-discretion review. United States v. Grzybowicz, 747 F.3d 1296, 1311
(11th Cir. 2014). For the reasons we have set out above, we also conclude that the
District Court did not abuse its discretion in denying Khan’s motion for a mistrial.
VI.
Accordingly, we AFFIRM Khan’s convictions.
AFFIRMED.
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