|
Alexandria Division UNITED STATES OF AMERICA, Crim. No. 02-51-M MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF RELEASE PENDING TRIAL INTRODUCTION Pursuant to 18 U.S.C. § 3142, the defendant, John Lindh, should be released under prescribed conditions because the government cannot meet its burden of showing by clear and convincing evidence that he is danger to the community or by a preponderance of evidence that he is a flight risk. As demonstrated within, each of the factors specified in § 3142(g) - the nature and circumstances of the offense charged, the weight of the evidence, the history and characteristics of the person, and the nature and seriousness of any danger to the community - weighs in favor of release. Mr. Lindh has no criminal record of any kind and absolutely no history of violent or dangerous conduct. The affidavit presented by the government in support of the Complaint does not even allege that Mr. Lindh has ever intended or attempted to harm any civilian. Nor is there any evidence that Mr. Lindh is a flight risk. Indeed, officials at the highest level of the U.S. government, including General Richard Meyers, Chairman of the Joint Chiefs of Staff and Deputy Defense Secretary Paul Wolfowitz, have confirmed Mr. Lindh's full cooperation since being taken into custody. The nature of the charges against Mr. Lindh and the weight of the evidence also support release. The government alleges only that that Mr. Lindh took part in military training and joined Taliban military forces engaged in hostilities with the Northern Alliance. He allegedly did so at a time when there was no United States presence or participation in that conflict According to the allegations in the affidavit supporting the Complaint, Mr. Lindh retreated from the region of combat as soon as U.S. planes began to bomb the area and then surrendered to Northern Alliance troops. There is no evidence that Mr. Lindh made any attempt to engage in combat with United States military forces, let alone to harm any civilian. As demonstrated within, the allegations of the affidavit, even if accepted as true, are insufficient to establish probable cause for the crimes charged. The weakness of the government's case is further underscored by the nature of the evidence on which it relies. The sole factual basis for the Complaint is a hearsay affidavit by an FBI agent relating statements allegedly made by Mr. Lindh to another unidentified agent on December 9 and 10, 2001, while Mr. Lindh was being held at Camp Rhino south of Kandahar in Afghanistan. The government provides no actual transcript or tape of any such interrogation or even the actual report of the agent conducting the interrogation. Despite requests first made on January 24 after the Rule 5 hearing and later memorialized in writing, the government has refused to supply defense counsel with that report or any of the alleged statements by Mr. Lindh. Conspicuously absent from the affidavit relied on by the government is any description of the circumstances of Mr. Lindh's captivity prior to the taking of the alleged statements. In fact, at the time of the alleged statements, Mr. Lindh had been held incommunicado in U.S. custody for approximately eight days. Throughout that time he was kept under heavy armed guard and given minimal food and medical attention despite gunshot and/or shrapnel wounds and despite malnutrition and dehydration as a result of spending the previous seven days in the basement of the Qala-i Janghi ("QIJ") fort while it was under repeated attack. During the two to three days immediately preceding the alleged statements, he had been kept in a metal shipping container, blindfolded and immobilized by hand and foot shackles and duct tape that bound his naked body to a stretcher. Despite the severe cold of December in Afghanistan, the metal container had no heat source, lighting or insulation, and Mr. Lindh was covered by only a single blanket. Because of the position in which he was bound, the pain from the shackles on his wrists and ankles and his untended wounds, and the severe cold, he had been virtually without sleep throughout those two to three days. His repeated requests for a lawyer had been ignored. These highly coercive conditions, together with the government's failure to produce anything other than hearsay accounts of the statements, render the alleged statements highly unreliable. ARGUMENT
I. MR. LINDH IS ENTITLED TO PRETRIAL RELEASE UNLESS THE GOVERNMENT CAN SHOW BY CLEAR AND CONVINCING EVIDENCE THAT HE IS A DANGER TO THE COMMUNITY OR BY A PREPONDERANCE OF EVIDENCE THAT HE IS A FLIGHT RISK The presumption in favor of pre-trial release of a person accused of a crime is a long-established principle of our federal judicial system and a corollary of the presumption of innocence. As the Supreme Court explained in Stack v. Boyle, 342 U.S. 1, 4 (1951) (emphasis in original): From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46(a)(1), federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker, 156 U.S. 277, 285 (1895). Unless [the] right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning. That presumption is preserved in the current bail statute. Pre-trial detention is appropriate only if "the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(e). Facts supporting a finding of danger to the community must be "supported by clear and convincing evidence." 18 U.S.C. § 3142(f). See United States v. Clark, 865 F.2d 1433, 1435-36 (4th Cir. 1989). The government erroneously represented to the Court at the Rule 5 hearing that the charges brought in the Complaint create a presumption that bail should not be granted. The conditions for such a presumption are set forth in section (e) of the bail statute, which provides in relevant part: Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe the person committed . . . an offense under . . . 2332b of title 18 of the United States Code. 18 U.S.C. § 3142(g) (emphasis added). The complaint charges Mr. Lindh, however, not with violation of 2332b but 2332(b), a different statute with different elements and different penalties. See United States v. DeBeir, 16 F. Supp. 2d 592, 594 (D. Md. 1998) ("[I]t is clear that the Act, as intended by Congress and interpreted by the Supreme Court, allows dangerousness to justify detention only for those individuals who fall within the carefully delineated categories set forth in § 3142(f)(1)"); United States v. Barnett, 986 F. Supp. 385, 394 (W.D. La. 1997) (no presumption against release of defendant charged with conspiracy to commit murder for hire because charging statute not specified in Bail Act). The statute designated by Congress as creating a presumption, 2332b, was first enacted in 1996 and is entitled "Acts of Terrorism Transcending National Boundaries." It proscribes specified acts of violence directed at persons or property "within the United States." 18 U.S.C. § 2332b(a)(1) (emphasis added). The jurisdictional bases for that statute are set forth in 2332b(b), and penalties for violation of that statute are set forth in 2332b(c). The completely separate statute under which the government has charged Mr. Lindh, 2332(b), was first enacted in 1986 and proscribes homicide, attempted homicide or conspiracy to commit homicide against a national of the United States, while that person is "outside of the United States." 18 U.S.C. § 2332(a) and (b). It incorporates the elements of homicide set forth in 18 U.S.C. §§ 1111(a) and 1112(a), and sets forth its own schedule of penalties. Id. There can be no question, therefore, that the charging statute here, 2332(b), is not within the statutory presumption. Moreover, as demonstrated below, the government has not even alleged facts sufficient to establish probable cause for a violation of 2332(b). There is, therefore, no presumption against pre-trial release. To the contrary, there is a presumption in favor of release that must be overcome by clear and convincing evidence that no combination of conditions can reasonably assure the safety of the community. 18 U.S.C. § 3142(f). II. THE NATURE AND CIRCUMSTANCES OF THE OFFENSES CHARGED SUPPORT RELEASE Among the factors to be considered in determining whether release is appropriate are "[t]he nature and circumstances of the offense charged, including whether the crime is a crime of violence or involves a narcotic drug." 18 U.S.C. § 3142(g)(1). The allegations of the affidavit supporting the Complaint, even if accepted as true, would show no tendency by Mr. Lindh to violence and would not support a finding that he is a danger to the community. The affidavit alleges that Mr. Lindh engaged in military training and then joined Taliban forces that were resisting the Northern Alliance along established battle lines in the Takhar region in northern Afghanistan. There are no allegations and no evidence that he ever intended or attempted to harm or did harm any civilian at any time. Indeed, the affidavit alleges that he declined to train for or engage in any activity other than "go[ing] to the front lines to fight." (Affidavit of Anne E. Asbury ("Asbury Aff."), at 9.) Moreover, there are no allegations and no evidence that he ever so much as fired a shot, even at Northern Alliance soldiers. III. THE SLIM WEIGHT OF THE EVIDENCE PRESENTED BY THE GOVERNMENT WEIGHS IN FAVOR OF RELEASE In support of the charges alleged in the Complaint, the government offers only the uncorroborated, double-hearsay affidavit of an FBI agent who has read the report of another agent who allegedly interrogated Mr. Lindh on December 9 and 10. The government offers no tape or transcript of the alleged statements, and no statement adopted and signed by the defendant. Indeed, despite repeated requests, the government has refused even to produce the report on which the affidavit is based. In addition, as set forth in part III(B) below, the highly coercive environment under which the alleged statements were made make them highly unreliable and ultimately inadmissible. Even if accepted as true, however, the allegations of the affidavit supporting the Complaint do not establish probable cause that the charged offenses were committed. A. The Allegations of the Complaint Do Not Establish Probable Cause 1. Count One The only crime of violence alleged by the Complaint is Count One, "engag[ing] in a conspiracy to kill nationals of the United States outside of the United States," in violation of 18 U.S.C. § 2332(b). Prosecutions under that statute are limited to offenses "intended to coerce, intimidate, or retaliate against a government or a civilian population." 18 U.S.C. § 2332(d). The only U.S. nationals identified as potential victims of the conspiracy alleged in the Complaint are "United States nationals engaged in the ongoing conflict in Afghanistan." (Asbury Aff., 16.) As the affidavit indicates, however, Mr. Lindh joined Taliban forces fighting against the Northern Alliance in the Takhar region in northern Afghanistan before September 11, and long before the United States had any military presence in Afghanistan. There is no basis to allege, therefore, that Mr. Lindh did so with the intention to harm U.S. nationals. According to the affidavit supporting the Complaint, when U.S. bombing began in the Takhar region, Mr. Lindh retreated with Taliban troops to Kunduz and then surrendered to Northern Alliance troops under the command of General Dostum. (Asbury Aff., 11). The affidavit alleges no facts that would support a finding that Mr. Lindh ever intended or attempted to engage in any hostilities with United States military forces. The affidavit supporting the Complaint does gratuitously and without relevance invoke in an introductory paragraph the memory of Johnny Michael Spann, the CIA agent who was killed during the uprising at the QIJ compound where Mr. Lindh was held. (Asbury Aff., 4). The affidavit does not allege, however, and there is no evidence that Mr. Lindh played any part in bringing about the uprising or had any knowledge that the uprising would occur. The Complaint alleges only that "[d]uring the course of the uprising, Walker [sic] retreated with other detainees to a basement area of the QIJ compound, where he remained for several days before being identified by military and medical personnel as a United States citizen." (Asbury Aff., 4). 2. Counts Two, Three and Four Counts Two and Three of the Complaint allege that, in violation of 18 U.S.C. § 2339B, Mr. Lindh "willfully and knowingly provide[d] material support and resources, as that term is defined in 18 U.S.C. Section 2339A(b)" to a designated organization The Complaint and the supporting affidavit do not specify what support or resources Mr. Lindh is alleged to have supplied. The government presumably relies, however, on the inclusion of the term "personnel" in the statutory definition of "material support and services" (18 U.S.C. § 2339A(b)), on the theory that Mr. Lindh supplied himself as personnel. Even according to the facts alleged in the affidavit, however, the only services ever provided by Mr. Lindh were as a foot soldier for the Taliban "in the Takhar trenches defending against Northern Alliance attacks." (Asbury Aff., 10). But the Taliban is not on the list of foreign terrorist organizations, and there was nothing illegal about its efforts to resist the advances of the Northern Alliance. The complaint, in Counts Two, Three and Four, would, in effect, seek to hold Mr. Lindh criminally liable based solely on alleged association with designated organizations and the Taliban. As the Supreme Court held in NAACP v. Claiborne Hardware Co., 458 U.S. 886, 920 (1982) (emphasis added), however, "[f]or liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims." There is no evidence, and the affidavit does not allege, that Mr. Lindh ever took part in any conduct by the named organizations other than military training and combat against the Northern Alliance. Nor is their any evidence that he had any intent to further any illegal aims of those organizations. Indeed, the affidavit alleges that he specifically declined to train for or take part in any illegal conduct. (Asbury Aff., 9). There is, therefore, no probable cause to find that Mr. Lindh violated the statutes under which he is charged. Moreover, the Ninth Circuit recently held that the term "personnel" as used in section 2339A and incorporated in section 2339B is unconstitutionally vague and, on that basis, upheld an injunction against prosecutions based on providing personnel to a designated organization. Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000); cert. denied, 121 S. Ct. 1226 (2001). On remand, the district court, in October of last year, entered a permanent injunction. See also Humanitarian Law Project v. Reno, No. CV 98-1971 ABD, 2001 U.S. Dist. LEXIS 16729 (C.D. Cal. Oct. 2, 2001). For that reason alone, the charges under this statute are subject to dismissal. B. The Alleged Statements by Mr. Lindh, If Made at All, Were Made Under Highly Coercive Circumstances That Render Them Unreliable and Ultimately Inadmissible As set forth in the attached proffer (Ex. B.), and corroborated in part by contemporaneous press reports, the circumstances in which Mr. Lindh allegedly made statements to an FBI agent on December 9 and 10 were highly coercive. Those statements, if made at all, are therefore unreliable and inadmissible. On approximately November 24, Mr. Lindh was among Taliban troops who had surrendered to the custody of General Dostum, a Northern Alliance commander with a reputation for extreme brutality. When other prisoners exploded grenades in an attempt to escape, Mr. Lindh was hit by shrapnel or bullets. After some hours, other prisoners took Mr. Lindh to the basement of the QIJ fort where he spent the next week. During the week in the fort basement, Mr. Lindh had almost no food, limited water and virtually no sleep. During that week, U.S. forces directed approximately 40 missile strikes at the fort. The prisoners in the basement were also subject to repeated attacks by Northern Alliance soldiers who, in succession: 1) threw grenades down air vents to the basement; 2) poured oil or gasoline down the vents and set the fuel on fire; and 3) flooded the basement with freezing water. Most of the prisoners who took refuge in the fort basement were killed. When Mr. Lindh emerged from the basement on about December 1, he was in a state of complete exhaustion and shock. He was taken at that time into United States custody and held for approximately a week by special forces at a location near Mazar-e Sharif. During that time, he was surrounded by armed guards and held in a room in which the only window was blocked so that it was difficult to know if it was night or day. He was provided minimal food and medical attention, though his treatment improved after he was interrogated by unidentified intelligence agents. As reflected in public statements of high-ranking government officials, Mr. Lindh cooperated fully with those agents in an attempt to provide any information that would be useful to them in pursuing perpetrators of terrorist activity. When he asked for a lawyer, he was told he would be provided a lawyer sometime later. Throughout this period of time, and until January 6, 2002, the Red Cross was prevented from delivering to Mr. Lindh messages from his parents communicating their support and the fact that they had engaged lawyers on his behalf. On approximately December 7, Mr. Lindh was transferred by air to Camp Rhino south of Kandahar. During the flight, he was blindfolded and bound with plastic cuffs so tight that his hands turned blue. Soldiers transporting him threatened him with death and torture. Upon arrival at Camp Rhino, Mr. Lindh's clothes were cut off him, his hands and feet were again shackled, and he was bound tightly with duct tape to a stretcher. Still blindfolded, completely naked, he was then placed in a metal shipping container. Press photographs of that container are attached as Ex. C. Despite the extreme cold of Afghanistan nights in December, there was no heat source, lighting or insulation in the container. After some time, one blanket was placed over Mr. Lindh and another was put under the stretcher. Because of the extreme cold, the position in which he was bound, and the pain from the tightness of his shackles and his untreated wounds, Mr. Lindh slept little if at all during that period of time. These conditions remained essentially the same for the following two to three days. At that point, still blindfolded, Mr. Lindh was taken in a state of complete exhaustion from the shipping container to a tent. When his blindfold was removed, he was greeted by an FBI agent who was facing him. When Mr. Lindh asked for a lawyer, he was told that there were no lawyers there. Mr. Lindh believed that the only way to escape the torture of his current circumstance was to do whatever the agent wanted. It as at this point that Mr. Lindh allegedly voluntarily waived of his right to remain silent and his right to counsel and answered questions by the FBI interrogator. After being interrogated by the agent, the conditions of Mr. Lindh's captivity did gradually begin to improve, and on approximately December 14, he was taken from Camp Rhino to the USS PELELIU. Only then did he receive needed medical attention, including surgery for his wounds. IV. MR. LINDH'S HISTORY AND CHARACTERISTICS SUPPORT PRE-TRIAL RELEASE Mr. Lindh has no criminal record of any kind, and no record of any drug or alcohol abuse. Mr. Lindh's conduct while in custody also shows that he is neither a danger to the community nor a flight risk. He has fully cooperated with all of those holding him in custody, including providing whatever information he had that might be helpful to U.S. intelligence agents. Mr. Lindh has a close relationship with his family, and strong ties to them. Should the Court determine that a condition of Mr. Lindh's release is residence in this district, Mr. Lindh's father is prepared to relocate to this district or to an adjoining community in order to provide a home for Mr. Lindh and to take responsibility for him as a personal custodian. V. MR. LINDH POSES NO DANGER TO THE COMMUNITY OR OTHER PERSONS The final factor identified by the statute is "the nature and seriousness of the danger to any person or the community that would be posed by the person's release." 18 U.S.C. § 3142(g)(4). As demonstrated above, there is no basis on which to conclude that Mr. Lindh would be a danger to any other member of the community. The only legitimate safety concern is for Mr. Lindh himself. Mr. Lindh's family shares the concern of pre-trial services for his safety and is prepared to take any feasible steps that the Court deems necessary to protect John while he awaits trial. While the details of any security plan should necessarily remain confidential, Mr. Lindh is prepared to present a plan for the Court's approval should the Court determine that pre-trial release is otherwise appropriate. If the Court has any concern over Mr. Lindh's attendance at all court dates or if it would contribute in any way to his safety, that plan could include electronic monitoring that insures that he remains in a single, secure location. VI. THE COURT SHOULD ALLOW FOR EXAMINATION OF SPECIAL AGENT ASBURY AND ANY OTHER WITNESSES RELIED ON BY THE GOVERNMENT IN OPPOSING PRE-TRIAL RELEASE The Bail Reform Act, while granting defendants the right to proceed by proffer (18 U.S.C. § 3142(f)), does not expressly grant that right to the government. "Nonetheless, a number of Federal Circuits - notably, not the Fourth - have held that evidence proffers . . . by the government . . . may sometimes be adequate for a detention order." United States v. Hammond, 44 F. Supp. 743, 745 (D. Md. 1999) (vacated and remanded on other grounds, 229 F.3d 1144 (4th Cir. 2000)). However, "[t]he case law certainly does not limit, and in fact supports, the discretion of the reviewing judicial officer to require the presentation of evidence," and whether or not proffer is sufficient "must be assessed on a case-by-case basis." Id. at 746. In Hammond, the court determined that live testimony was necessary because the proffered evidence was "the uncorroborated statement(s) of one or two police officers who allegedly observed a single act committed by the defendant, and . . . there [was] no other evidence proffered in support of the eyewitness testimony. Id. See also United States v. Ridinger, 623 F. Supp. 1386, 1401 (W.D. Mo. 1985) ("of paramount importance, the magistrate should . . . through the sensible exercise of his or her discretion, insist that the government produce the testimony of live witnesses or, by conducting an appropriate inquiry, establish the reliability of the information upon which the government bases its claim of dangerousness"). Here, a fortiori, where there is no witness to any of the alleged events, and the government relies solely on the uncorroborated, hearsay affidavit of an agent recounting statements allegedly made by the defendant to another agent, the defendant should have the opportunity to test the reliability of the allegations in the affidavit through cross-examination. Defendant's counsel has requested that government counsel make available at the detention hearing the agent who signed the affidavit, FBI special agent Anne Asbury. (See Ex. A, West Decl., at 5.) The government has not, however, made any response to that request. Id. CONCLUSION For all of the reasons stated above, Mr. Lindh should be granted pre-trial release on terms and conditions that reasonably assure his appearance at trial, his safety, and the safety of the community. The government cannot meet its burden of showing by "clear and convincing evidence" "that no condition or combination of conditions" will reasonably provide such safety. Dated: February __, 2002 Respectfully submitted, GEORGE C. HARRIS Copyright Status: Text = Public domain. |
|
|
© Copyright 2001-Present. |