United States v. Salameh

Following a lengthy jury trial in the United States District Court for the Southern District of New York (Duffy, J.), defendants were convicted of various crimes related to the bombing of the World Trade Center Complex in New York City. Defendants now appeal, asserting a congeries of arguments. For the reasons that follow, we affirm the judgment of the district court but remand for re-sentencing and decline to exercise jurisdiction over certain post-trial motions pending before the district court.

                              TABLE OF CONTENTS
Background ............................................................... 107
     I.  Suppression Motions ............................................. 108
         A.    Motions to Suppress Materials Seized From Ajaj ............ 108
               (1)  Ajaj's Motion ........................................ 108
               (2)  Abouhalima's Motion .................................. 110
                    (a)  Rule 403 ........................................ 110
                    (b)  First Amendment ................................. 111
               (3)  Ayyad's Motion ....................................... 112
         B.    Motion to Suppress Contents of the Storage Shed ........... 112
               (1)  Probablese ........................................... 112
               (2)  Franks Hearing ....................................... 113
               (3)  Good Faith Reliance .................................. 114
    II.  Procedural Motions .............................................. 114
         A.    Abouhalima--Severance ..................................... 114
               (1)  Ajaj's Holy War Materials ............................ 115
               (2)  Salameh's Summation .................................. 116
         B.    Abouhalima--Involuntariness of Statement .................. 117
         C.    Ayyad--Failure to Grant Funds for Experts ................. 118
         D.    Ajaj--Eastern District Plea Agreement ..................... 118
   III.  Jury Selection .................................................. 120
    IV.  Evidentiary Rulings ............................................. 122
         A.    Admission of Evidence Regarding Bombing Victims ........... 122
               (1)  Probative Value ...................................... 122
               (2)  Danger of Unfair Prejudice ........................... 123
         B.    Admission of Evidence Regarding Nosair .................... 123
               (1)  Photographs of Salameh and Nosair .................... 123
               (2)  Admission of Abouhalima's Contacts with Nosair ....... 124
         C.    Admission of Identification ............................... 124
               (1)  Use of Photo Array ................................... 125
               (2)  Subsequent In"Court Identifications .................. 126
         D.    Examination of Storage Facility Employee .................. 127
               (1)  Leading Questions .................................... 127
               (2)  Comments Regarding Meeting ........................... 128
         E.    Testimony of the Government's Fingerprint Expert .......... 128
         F.    Admission of DNA Evidence ................................. 129
         G.    Confrontation Clause ...................................... 130
               (1)  Moneeb ............................................... 131
               (2)  Butler ............................................... 131
               (3)  Moharam .............................................. 132
         H.    Requested Read-back of Testimony .......................... 132
     V.  Jury Arguments .................................................. 133
         A.    Prosecutorial Misconduct as to Abouhalima ................. 134
               (1)  Government Misrepresentations ........................ 134
                    (a)  Witnesses ....................................... 134
                    (b)  Affiliation With Yousef ......................... 134
                    (c)  Inexplicable Nervousness ........................ 134
               (2)  Jury Fear ............................................ 134
               (3)  Government Vouching .................................. 135
               (4)  Burden of Proof ...................................... 136
         B.    Prosecutorial Misconduct as to Ajaj ....................... 137
               (1)  Government's Improper Arguments ...................... 137
               (2)  Attacks on the Defense ............................... 138
               (3)  Change in Summation Theory ........................... 139
    VI.  Jury Charge ..................................................... 140
         A.    The Bully Hypothetical .................................... 140
         B.    Abouhalima--Terrorist Materials ........................... 144
         C.    Elements of the Charged Conspiracy ........................ 145
         D.    Ajaj's Objection to the Jury Charge ....................... 147
               (1)  Essential Nature of Plan ............................. 147
               (2)  Inclusion of the Pinkerton Charge .................... 148
               (3)  Failure to Charge on Withdrawal Sua Sponte ........... 150
   VII.  Sufficiency of the Evidence ..................................... 151
         A.    Standard of Review ........................................ 151
         B.    Ajaj ...................................................... 151
         C.    Abouhalima ................................................ 155
  VIII.  Unfair Trial--Due Process ....................................... 157
    IX.  Post"Trial Motions .............................................. 158
         A.    New Trial (Ajaj) .......................................... 158
         B.    Ineffective Assistance of Counsel ......................... 160
     X.  Sentencing ...................................................... 161
                               Conclusion ................................ 161

On April 24, 1992, Ahmad Mohammad Ajaj departed from his home in Houston, Texas, and traveled to the Middle East to attend a terrorist training camp, known as "Camp Khaldan," on the Afghanistan-Pakistan border. There he learned how to construct homemade explosive devices. During his time in Pakistan, Ajaj met Ramzi Ahmed Yousef. Together the two plotted to use their newly acquired skills to bomb targets in the United States.

In the fall of 1992, after formulating a terrorist plan, Ajaj and Yousef traveled to New York under assumed names. Ajaj carried with him a "terrorist kit" that he and Yousef had assembled in Pakistan. The kit included, among other things, handwritten notes Ajaj had taken while attending explosives courses, manuals containing formulae and instructions for manufacturing bombs, materials describing how to carry-off a successful terrorist operation, videotapes advocating terrorist action against the United States, and fraudulent identification documents.

On September 1, 1992, Ajaj and Yousef, using false names and passports, arrived at John F. Kennedy International Airport in New York. At customs, INS inspectors discovered that Ajaj's passport had been altered and, consequently, they searched his belongings. Upon discovery of the "terrorist kit," Ajaj became belligerent. The INS seized Ajaj's "terrorist kit" and placed him under arrest. Ajaj was later indicted in the United States District Court for the Eastern District of New York for passport fraud. He pled guilty and was sentenced to six months' imprisonment.

During Ajaj's encounter with the INS inspectors, he denied that he was traveling with Yousef, who proceeded unmolested to the secondary inspection area where he presented an Iraqi passport and claimed political asylum. Yousef was arrested for entering the United States without a visa. Eventually he was released on his own recognizance.

Once in New York, Yousef assembled a team of trusted criminal associates, including Mohammed Salameh, Nidal Ayyad, Mahmoud Abouhalima and Abdul Rahman Yasin. Together, the conspirators implemented the bombing plot that Ajaj and Yousef had hatched overseas. Ayyad and Salameh opened a joint bank account into which they deposited funds to finance the bombing plot. Some of that money was later used by Salameh to rent a storage shed in Jersey City, New Jersey, where the conspirators stored chemicals for making explosives. Yousef also drew on that account to pay for materials described in Ajaj's manuals as ingredients for bomb making.

The first target of the conspirators' plot was the World Trade Center. Ayyad used his position as an engineer at Allied Signal, a large New Jersey chemical company, to order the necessary chemical ingredients for bomb making, and to order hydrogen tanks from ALG Welding Company that would enhance the bomb's destructive force. Abouhalima obtained "smokeless powder," which the conspirators used to make explosives. Smokeless powder, and all the other chemicals procured by the conspirators for the bomb, were stored in the shed rented by Salameh.

Abouhalima helped Salameh and Yousef find a ground floor apartment at 40 Pamrapo Avenue in Jersey City. The apartment fit the specifications in Ajaj's manuals for an ideal base of operations. In the 40 Pamrapo apartment, Abouhalima, Salameh, Yousef and Yasin mixed the chemicals for the World Trade Center bomb, following Ajaj's formulae. Abouhalima also obtained a telephone calling card, which the conspirators used to contact each other and to call various chemical companies for bomb ingredients.

During this entire period, although Ajaj remained incarcerated, he kept in telephone contact with Yousef. By doing so, Ajaj stayed abreast of the conspirators' progress in carrying out the terrorist plot and attempted to get his "terrorist kit" into Yousef's hands. Because Ajaj was in jail and his telephone calls were monitored, Ajaj and Yousef spoke in code when discussing the bomb plot.

On February 23, 1993, Salameh rented a yellow van at DIB Leasing, a Ryder dealership in Jersey City. The conspirators loaded their homemade bomb into that van. On February 26, 1993, the conspirators drove the bomb-laden van into a below-ground parking lot on the B-2 level of the World Trade Center Complex and, using a timer, set the bomb to detonate. At 12:18 p.m., the bomb exploded, killing six people, injuring over a thousand others, and causing hundreds of millions of dollars in damage.

After the explosion, Ayyad took credit for the bombing on behalf of the conspirators by, among other things, writing an anonymous letter to the New York Times explaining that the attack was undertaken in retaliation for American support of Israel. The letter threatened future terrorist "missions."

Immediately after the bombing, Yousef, Abouhalima and Yasin fled the country. Abouhalima was apprehended in Egypt prior to the trial and turned over to federal agents by Egyptian authorities, but Yousef and Yasin remained fugitives. Salameh arranged to flee as well, but was arrested the day before he planned to depart when he made the ludicrous mistake of going back to the Ryder truck rental office to get his rental deposit back. On March 1, 1993, Ajaj completed his term of imprisonment on the passport fraud conviction and was released. Approximately one week later, on March 9, Ajaj was taken into government custody on an INS detainer.

In September 1993, Ayyad, Abouhalima, Ajaj, Salameh, Yousef and Yasin were indicted in the United States District Court for the Southern District of New York (Duffy, J.), on various charges relating to their participation in the plot to bomb the World Trade Center. Yousef and Yasin were still fugitives at the time of trial.2

The trial lasted six months and involved over 1000 exhibits and the testimony of more than 200 witnesses. The defendants were convicted on all counts and each was sentenced to 240 years' imprisonment. Defendants now appeal their convictions and sentences, raising a variety of issues.

A. Motions to Suppress Materials Seized from Ajaj

Ajaj claims that Judge Duffy should have suppressed the terrorist materials seized from him at Kennedy Airport. He maintains that the materials were obtained and then held pursuant to an illegal grand jury subpoena. Ajaj's argument has no merit.

On October 6, 1992, Ajaj pled guilty in the United States District Court for the Eastern District of New York (Raggi, J.) to one count of passport fraud. After the guilty plea, Judge Raggi ordered the government to return Ajaj's belongings or to come forward with a reason for failing to do so.

On December 22, 1992, an Assistant United States Attorney for the Eastern District of New York served a grand jury subpoena on Ajaj calling for production of many of the terrorist materials seized at Kennedy Airport. Although the subpoena purported to be a subpoena ad testificandum, it was accompanied by a duces tecum rider that specified the materials Ajaj was ordered to produce. When Ajaj's counsel in the passport fraud case inquired whether the subpoena really sought Ajaj's testimony as well as the evidence listed in the rider, the government explained that the subpoena sought only the specified evidence. Ajaj did not move to quash the subpoena.

After Ajaj learned that the government was planning to introduce the terrorist materials in the World Trade Center bombing trial, he moved to suppress the materials held pursuant to the grand jury subpoena. Ajaj argued that the subpoena was illegal since: (1) Ajaj could not have been under investigation when the subpoena was issued because it was issued after the completion of the passport fraud case but before the World Trade Center was bombed; and (2) the subpoena was a subpoena ad testificandum, not a subpoena duces tecum. Judge Duffy denied Ajaj's motion to suppress, finding that the use of the subpoena was proper. Ajaj renews his claim on appeal.

It is "improper for the government to use a grand jury subpoena 'for the sole or dominant purpose of preparing for trial.' " United States v. Sasso, 59 F.3d 341, 351 (2d Cir.1995) (quoting United States v. Leung, 40 F.3d 577, 581 (2d. Cir.1994)). However, "[w]here there [is] some proper dominant purpose for the postindictment subpoena ... the government is not barred from introducing evidence obtained thereby." Id. at 351-52. A grand jury subpoena is presumed to have a proper purpose, and the defendant bears the burden of showing that the grand jury has exceeded its legal powers. See United States v. R. Enterprises, Inc., 498 U.S. 292, 300-01, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991). A defendant must present "particularized proof" of an improper purpose to overcome the presumption of propriety of the grand jury subpoena. See United States v. Mechanik, 475 U.S. 66, 75, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986).

Ajaj failed to present any proof that the government misused the grand jury subpoena. He maintains that the subpoena had no legitimate purpose because in December 1992, when the subpoena was issued, his passport fraud prosecution was over and the World Trade Center had not yet been bombed. He therefore posits that he could not have been under investigation when the subpoena was issued and therefore that the sole purpose of the subpoena was to circumvent Judge Raggi's order for the return of the materials.

The government presented evidence that demonstrated a proper purpose for the grand jury subpoena. It consisted primarily of an affidavit from the Assistant United States Attorney who prepared the subpoena, explaining that the materials seized from Ajaj were used in a joint FBI-NYPD investigation of terrorism. The affidavit further noted that the subpoena was not connected to the Eastern District passport fraud case. This evidence established that the subpoena had a proper purpose. See Sasso, 59 F.3d at 352.

While the government should not have ignored Judge Raggi's order to return Ajaj's belongings or to explain its reasons for failing to do so, any relief that Ajaj was entitled to seek would have been some sort of remedial order directed to the entity that violated Judge Raggi's order--the United States Attorney's Office for the Eastern District of New York. Ajaj did not seek such an order. The subsequent grand jury proceeding in the Southern District of New York was a wholly independent investigation into terrorist activity. Such an investigation was clearly within the province of the Southern District grand jury. See, e.g, Branzburg v. Hayes, 408 U.S. 665, 668, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (grand jury can investigate " 'merely on suspicion that the law is being violated, or even because it wants to assure that is not' " (citation omitted)). With respect to the Southern District investigation, Ajaj has not met his burden of showing that the government's use of the grand jury was improper. Accordingly, he has not overcome the presumption of regularity applicable to grand jury proceedings. See Leung, 40 F.3d at 581.

Ajaj also argues that the subpoena was somehow illegal because it purported to be a subpoena ad testificandum when it actually was a subpoena duces tecum. Ajaj fails to explain why the subpoena was invalid because of this technical error. A subpoena ad testificandum may order a person to bring objects with him for the use of the grand jury. See 2 Charles Alan Wright, Federal Practice and Procedure § 274, at 150 (2d ed.1982). On its face, the subpoena issued to Ajaj appeared to request both his presence and the production of physical evidence. Although it turned out that Ajaj's testimony was superfluous, the subpoena was not improper because the grand jury requested production of Ajaj personally in addition to the terrorist materials. See id. at 151.

Moreover, Ajaj suffered no prejudice as a result of the mischaracterization of the subpoena. The rider made it clear that the subpoena sought the terrorist materials Ajaj brought into the United States. Moreover, when Ajaj's counsel inquired whether the subpoena sought testimony from Ajaj, the government explained that it did not. Thus, the government's inadvertence did not prejudice Ajaj, and was not grounds to suppress the evidence held pursuant to the subpoena.

Judge Duffy admitted some of the materials seized from Ajaj into evidence against all the defendants. Abouhalima argues that the admission of Ajaj's terrorist materials violated Federal Rule of Evidence 403, and his rights under the First Amendment of the Constitution.

a. Rule 403

The trial judge admitted the following terrorist materials seized from Ajaj into evidence against all the defendants: (1) a videotape of the bombing of an American embassy which also provided instruction on how to make explosives and timing devices; (2) Ajaj's handwritten notebooks on how to make explosives (including urea nitrate) and improvised weapons; (3) a videotape containing a chemistry lesson on manufacturing explosives; (4) manuals on catalysts, detonators and other bomb ingredients; (5) a document entitled "Facing the enemies of God terrorism is a religious duty and force is necessary," which urged acts of terrorism against the enemies of Islam; and (6) a book entitled "Rapid Destruction and Demolition," which described the destruction of buildings and contained a formula for using explosives to accomplish this end.

In addition, Judge Duffy admitted copies of: (1) "Facing the enemies of God"; and (2) "Rapid Destruction and Demolition" that were recovered from Abouhalima's residence. The copy of "Rapid Destruction and Demolition" found in Abouhalima's residence bore his fingerprint on the page containing the formula for destroying buildings with explosives. Abouhalima argues that Judge Duffy should not have admitted these terrorist materials because they were highly prejudicial and lacked probative value. He is incorrect.

Under Rule 403, relevant evidence may be excluded when its probative value is "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403. A district court is obviously in the best position to do the balancing mandated by Rule 403. See, e.g., United States v. Birney, 686 F.2d 102, 106 (2d Cir.1982). We will second-guess a district court "only if there is a clear showing that the court abused its discretion or acted arbitrarily or irrationally." United States v. Valdez, 16 F.3d 1324, 1332 (2d Cir.1994). To avoid acting arbitrarily, the district court must make a "conscientious assessment" of whether unfair prejudice substantially outweighs probative value. Birney, 686 F.2d at 106.

Although it does not bear directly on the charged elements of a crime, evidence offered to prove motive is commonly admitted. See id. at 106-07. In addition, evidence that provides background information necessary to the jury's understanding of the nature of the conspiratorial agreement properly is admitted "to furnish an explanation of the understanding or intent with which certain acts were performed." United States v. Daly, 842 F.2d 1380, 1388 (2d Cir.1988).

Where a defendant is a member of a conspiracy, all the evidence admitted to prove that conspiracy, even evidence relating to acts committed by co-defendants, is admissible against the defendant. See, e.g., United States v. Cunningham, 723 F.2d 217, 230 (2d Cir.1983).

The record amply demonstrates that Judge Duffy made a "conscientious assessment" of the proffered evidence and properly determined that unfair prejudice did not substantially outweigh the probative value of these materials. See Birney, 686 F.2d at 106. Before admitting any materials, Judge Duffy scrupulously reviewed each item and heard extensive argument from counsel. Having heard both sides, Judge Duffy excluded a number of the materials seized from Ajaj as unduly prejudicial. The materials that were admitted established the existence of the conspiracy to bomb American targets and demonstrated the defendants' intent and motivation to use violence to protest American foreign policy in the Middle East.

For example, the documents seized from Ajaj provided instruction on: (1) constructing bombs; (2) mixing explosives; and (3) using bombs to destroy buildings. Specific pages of these materials contained formulae for the same explosives that were used to construct the World Trade Center bomb, and Ajaj's and Yousef's fingerprints were found on those pages. Moreover, traces of those same explosives were found in the homes of, and on objects linked to, Yousef, Abouhalima, Salameh and Ayyad. Thus, the terrorist materials provided circumstantial proof of a connection among the conspirators and their familiarity with bomb making and the use of explosives.

In addition, the copies of "Facing the enemies of God," and "Rapid Destruction and Demolition," that were recovered from Abouhalima's residence linked the conspirators. The copy of "Rapid Destruction and Demolition" seized from Abouhalima bore his fingerprint on the page containing the formula for destroying buildings with explosives. Under the circumstances, the fact that Ajaj and Abouhalima both possessed the same documents was probative of their relationship as co-conspirators.

The materials possessed by both Ajaj and Abouhalima bristled with strong anti-American sentiment and advocated violence against targets in the United States. These same themes were expressed in a letter attributed to another co-conspirator, Ayyad, that was sent to the New York Times in the aftermath of the bombing. The materials, in addition to establishing a link between the co-conspirators, evidenced the conspiracy's motive and intent to bomb targets in the United States. In addition, the materials provided the jury with background and "an explanation of the understanding or intent with which certain acts were performed." Daly, 842 F.2d at 1388.

Furthermore, the materials had probative value in light of their similarity to the actual bombing. As Judge Duffy recognized, one videotape admitted in evidence showed a man driving a truck into a building that was flying an American flag. The building was then demolished in an explosion. The videotape thus closely resembled the actual events at the World Trade Center and provided further evidence of motive and intent.

The sulphurous anti-American sentiments expressed in the terrorist materials no doubt threatened to prejudice the jury against the defendants. However, Judge Duffy did not abuse his discretion by concluding that the significant probative value of this evidence was not substantially outweighed by the danger of unfair prejudice.

b. First Amendment

Abouhalima argues also that the admission of Ajaj's terrorist materials violated Abouhalima's First Amendment rights. Ajaj's possession of the terrorist materials, Abouhalima contends, was used as the basis for an inference that Abouhalima and the other conspirators engaged in criminal acts. It is difficult to comprehend this argument since it is beyond cavil that "[t]he First Amendment ... does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent." Wisconsin v. Mitchell, 508 U.S. 476, 489, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993). Neither Ajaj nor Abouhalima was prosecuted for possessing or reading terrorist materials. The materials seized from Ajaj were used appropriately to prove the existence of the bombing conspiracy and its motive. Moreover, any prejudicial effect they might have had was ameliorated by the trial court's instruction that mere possession of the literature is not illegal and that the defendants' political beliefs were not on trial.

Ayyad argues that admission of Ajaj's terrorist materials violated Federal Rule of Evidence 801(d)(2)(E). This claim is meritless because the materials were admissible for a non-hearsay purpose.

Federal Rule of Evidence 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Rule 801(d)(2)(E) provides that, notwithstanding the definition in Rule 801(c), "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy," is equally not hearsay. Obviously, if the proffered evidence is not hearsay in the first place, under Rule 801(c), the various requirements of Rule 801(d)(2)(E) need not be met. See Anderson v. United States, 417 U.S. 211, 219, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974).

The terrorist materials seized from Ajaj discussed two issues: (1) the desirability of attacking enemies of Islam; and (2) how to produce and use explosives. However, the government introduced this evidence to prove the state of mind of those who harbored these materials, relevant to prove: (1) the existence of the bombing conspiracy; and (2) the conspirator's intent and motives. See Tr. 7320-21.

"Where, as here, the statement is offered as circumstantial evidence of [a defendant's] state of mind, it does not fall within the definition given by Rule 801(c); because it was not offered to prove the truth of the matter asserted." United States v. Detrich, 865 F.2d 17, 21 (2d Cir.1988); see United States v. Pedroza, 750 F.2d 187, 200 (2d Cir.1984). As proof of defendants' state of mind, Ajaj's terrorist materials were not hearsay under Rule 801(c), and their failure to come within Rule 801(d)(2)(E) is of no consequence. See Anderson, 417 U.S. at 219, 94 S.Ct. 2253.

B. Motion to Suppress Contents of the Storage Shed

At trial, the government introduced homemade nitroglycerine and large quantities of bomb making ingredients seized from a storage shed (the "Shed"), at the Space Station storage facility in Jersey City (the "Space Station"). Salameh argues that Judge Duffy should have suppressed this evidence. Salameh is wrong.

On March 5, 1993, a Magistrate Judge in the District of New Jersey issued a search warrant for the Shed. Probable cause for the warrant was based upon an affidavit of FBI Special Agent Eric Pilker.

Before trial, Salameh moved to suppress the evidence from the Shed on the ground that Pilker's affidavit did not establish probable cause for the search. Salameh also requested a hearing to test alleged misstatements in Pilker's affidavit. Judge Duffy denied the motion to suppress as well as the requested hearing, finding that: (1) Salameh lacked standing to contest the search; (2) there was probable cause for the search warrant; and (3) even if the warrant was not supported by probable cause, the search was proper because it was conducted in good faith reliance on the search warrant. Because we agree that there was both probable cause and good faith, we need not and do not address the standing argument.

In deciding whether probable cause exists for a search warrant, a judge must determine whether "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). "[O]nly the probability, and not the prima facie showing, of criminal activity is the standard of probable cause." Id. at 235, 103 S.Ct. 2317 (internal quotation marks and citation omitted). In assessing the proof of probable cause, the government's affidavit in support of the search warrant must be read as a whole, and construed realistically. See id. at 230-31, 103 S.Ct. 2317.

We accord "great deference" to a judge's determination that probable cause exists, and we resolve any doubt about the existence of probable cause in favor of upholding the warrant. See United States v. Jakobetz, 955 F.2d 786, 803 (2d Cir.1992). Our duty is "simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Gates, 462 U.S. at 238-39, 103 S.Ct. 2317 (citation omitted; alterations in original).

Pilker's affidavit in support of the search warrant stated that an explosion had occurred at the World Trade Center, and that an FBI explosives expert had determined that it was caused by a bomb. The affidavit also related that the expert knew from examining an auto part recovered at the crime scene that the part belonged to whatever vehicle carried the bomb. Using the part's vehicle identification number, investigators traced it to a yellow Ford Econoline 350 van registered in Alabama to the Ryder Truck Rental Company and leased by Mohammad Salameh from a rental office in Jersey City for a one-week period beginning three days before the explosion.

Elsewhere in the affidavit, Pilker related that a Space Station employee informed the FBI that storage shed number 4344 was under lease to "Kamil Ibrahim." The employee told the FBI that on February 25, 1993, one day before the bombing, he observed "Kamil Ibrahim," along with other males, making numerous trips to the Shed using a yellow Ryder van. Moreover, the same Space Station employee stated that on March 4, 1993, less than one week after the bombing, he entered the Shed and observed containers marked "sulfuric acid," "nitric acid" and "urea." A forensic chemist at the Bureau of Alcohol, Tobacco and Firearms informed the FBI that those three substances could be combined to produce a powerful bomb.

Finally, the affidavit described that, when renting the Ryder van, Salameh had given a telephone number that belonged to someone named Jodie Hadas at 34 Kensington Avenue, Apt. 4, in Jersey City. When investigators searched that apartment on March 4, 1993, they found tools, wiring and manuals concerning antennae, circuitry and electromagnetic devices. A law enforcement bomb technician advised the FBI that these items indicated that a bomb maker lived in that apartment.

Cumulatively, this evidence provided ample probable cause to believe that the Shed contained evidence of the World Trade Center bombing.

Salameh argues that Pilker's affidavit contained recklessly false statements regarding the alleged evidence of bomb making discovered at the Kensington Avenue apartment. Salameh asserts that Judge Duffy should have granted him a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to test the accuracy of Pilker's claims.

To be entitled to a Franks hearing, a defendant must make a "substantial preliminary showing" that: (1) the claimed inaccuracies or omissions are the result of the affiant's deliberate falsehood or reckless disregard for the truth; and (2) the alleged falsehoods or omissions were necessary to the judge's probable cause finding. See United States v. Levasseur, 816 F.2d 37, 43 (2d Cir.1987). If, after setting aside the allegedly misleading statements or omissions, the affidavit, nonetheless, presents sufficient information to support a finding of probable cause, the district court need not conduct a Franks hearing. See id.

In his affidavit, Pilker related that the Kensington Avenue apartment contained evidence of a bomb maker. Salameh maintains that this statement was false, and that Pilker was reckless in including it in his affidavit.