United States v. Omar Ahmad Ali Abdel Rahman

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . .103

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . 103

I. The Government's Case . . . . . . . . . . . . . . . . . .104

II. The Defense Case . . . . . . . . . . . . . . . . . . . . 111

III. Verdicts and Sentences . . . . . . . . . . . . . . . . .111

DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . .111

I. Constitutional Challenges . . . . . . . . . . . . . . . . .111

A. Seditious Conspiracy Statute and the Treason Clause . . . . 111

B. Seditious Conspiracy Statute and the First Amendment . . . . 114

1. Facial Challenge . . . . . . . . . . . . . . . . . . . . . . . 114

2. Application of Section 2384 to Rahman's Case . . . . . . . . . 116

II. Statutory Challenge . . . . . . . . . . . . . . . . . . . . . .118

A. Possession of Foreign Passports under 18 U.S.C. § 1546 . . .118

III. Pretrial and Trial Challenges . . . . . . . . . . . . . . . . ..119

A. Seizure of Passports . . . . . . . . . . . . . . . . . . . . . . .119

B. Jury Voir Dire . . . . . . . . . . . . . . . . . . . . . . . . . . 121

C. Severance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .122

D. Sufficiency of the Evidence . . . . . . . . . . . . . . . . . . . . . 122

1. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . 122

2. Rahman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .123

3. Nosair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .126

4. Fadil Abdelgani . . . . . . . . . . . . . . . . . . . . . . . . . . . .127 5. El-Gabrowny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .128

6. Alvarez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .128

7. Hampton-El . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .129

E. Government Overinvolvement . . . . . . . . . . . . . . . . . . . . . 131

F. Restriction on Cross-Examination . . . . . . . . . . . . . . . . . . .132

G. Double Jeopardy Arising from Rule 29(a) Motion . . . . . . . . . . . .132

H. Exclusion of Expert Testimony . . . . . . . . . . . . . . . . . . . . .134

I. Exclusion of Taped Conversations . . . . . . . . . . . . . . . . . . .138

J. Loss of Exculpatory Evidence . . . . . . . . . . . . . . . . . . . . .139

K. Government's Summation . . . . . . . . . . . . . . . . . . . . . . . .140

L. Jury Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . 140

1. Transferred Intent . . . . . . . . . . . . . . . . . . . . . . . . . .140

2. Entrapment Defense . . . . . . . . . . . . . . . . . . . . . . . . . .142

3. Intoxication Defense . . . . . . . . . . . . . . . . . . . . . . . . .142

4. Use of Firearm . . . . . . . . . . . . . . . . . . . . . . . . . . . .143

M. Ineffective Assistance of Counsel . . . . . . . . . . . . . . . . . .143

1. Rahman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .143

2. El-Gabrowny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .144

3. Elhassan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .144

4. Fadil Abdelgani . . . . . . . . . . . . . . . . . . . . . . . . . . .144

N. Claim of Cumulative Errors . . . . . . . . . . . . . . . . . . . . . .145

IV. Sentencing Challenges . . . . . . . . . . . . . . . . . . . . . . . . 145

A. Determination of the Sentences . . . . . . . . . . . . . . . . . . . .145

B. Sentencing Claims . . . . . . . . . . . . . . . . . . . . . . . . . . .149

1. Use of Treason Guideline as Analogy . . . . . . . . . . . . . . . . . 150

2. Whether Each Defendant Was Found to Have Agreed to Levy War for Purposes of Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154

3. Challenges to Consecutive Sentences . . . . . . . . . . . . . . . . .154

4. Inchoate Offense Reduction . . . . . . . . . . . . . . . . . . . . . .158

5. Role-in-the-Offense Adjustment . . . . . . . . . . . . . . . . . . . .159

C. Remand for Reconsideration of El-Gabrowny's Sentence and for Findings . . 160

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

These are appeals by ten defendants convicted of seditious conspiracy and other offenses arising out of a wide-ranging plot to conduct a campaign of urban terrorism. Among the activities of some or all of the defendants were rendering assistance to those who bombed the World Trade Center, see United States v. Salameh, 152 F.3d 88 (2d Cir. 1998) (affirming convictions of all four defendants), planning to bomb bridges and tunnels in New York City, murdering Rabbi Meir Kahane, and planning to murder the President of Egypt. We affirm the convictions of all the defendants. We also affirm all of the sentences, with the exception of the sentence of Ibrahim El-Gabrowny, which we remand for further consideration.

Defendants-Appellants Sheik Omar Abdel Rahman, El Sayyid Nosair, Ibrahim El-Gabrowny, Clement Hampton-El, Amir Abdelgani ("Amir"), Fares Khallafalla, Tarig Elhassan, Fadil Abdelgani ("Fadil"), Mohammed Saleh, and Victor Alvarez (collectively "defendants") appeal from judgments of conviction entered on January 17, 1996, following a nine-month jury trial in the United States District Court for the Southern District of New York (Michael B. Mukasey, District Judge).

The defendants were convicted of the following: seditious conspiracy (all defendants); soliciting the murder of Egyptian President Hosni Mubarak and soliciting an attack on American military installations (Rahman); conspiracy to murder Mubarak (Rahman); bombing conspiracy (all defendants found guilty except Nosair and El-Gabrowny); attempted bombing (Hampton-El, Amir, Fadil, Khallafalla, Elhassan, Saleh, and Alvarez); two counts of attempted murder and one count of murder in furtherance of a racketeering enterprise (Nosair); attempted murder of a federal officer (Nosair); three counts of use of a firearm in relation to a crime of violence (Nosair); possession of a firearm with an obliterated serial number (Nosair); facilitating the bombing conspiracy by shipping a firearm in interstate commerce and using and carrying a firearm in relation to a crime of violence (Alvarez); two counts of assault on a federal officer (El-Gabrowny); assault impeding the execution of a search warrant (El-Gabrowny); five counts of possession of a fraudulent foreign passport, and one count of possession with intent to transfer false identification documents (El-Gabrowny).

At trial, the Government sought to prove that the defendants and others joined in a seditious conspiracy to wage a war of urban terrorism against the United States and forcibly to oppose its authority. The Government also sought to prove various other counts against the defendants, all of which broadly relate to the seditious conspiracy. The Government alleged that members of the conspiracy (acting alone or in concert) took the following actions, among others, in furtherance of the group's objectives: the attempted murder of Hosni Mubarak, the provision of assistance to the bombing of the World Trade Center in New York City on February 26, 1993, and the Spring 1993 campaign of attempted bombings of buildings and tunnels in New York City. In addition, some members of the group were allegedly involved in the murder of Rabbi Meir Kahane by defendant Nosair.

The Government adduced evidence at trial showing the following: Rahman, a blind Islamic scholar and cleric, was the leader of the seditious conspiracy, the purpose of which was "jihad," in the sense of a struggle against the enemies of Islam. Indicative of this purpose, in a speech to his followers Rahman instructed that they were to "do jihad with the sword, with the cannon, with the grenades, with the missile . . . against God's enemies." Govt. Ex. 550 at 22. Rahman's role in the conspiracy was generally limited to overall supervision and direction of the membership, as he made efforts to remain a level above the details of individual operations. However, as a cleric and the group's leader, Rahman was entitled to dispense "fatwas," religious opinions on the holiness of an act, to members of the group sanctioning proposed courses of conduct and advising them whether the acts would be in furtherance of jihad.

According to his speeches and writings, Rahman perceives the United States as the primary oppressor of Muslims worldwide, active in assisting Israel to gain power in the Middle East, and largely under the control of the Jewish lobby. Rahman also considers the secular Egyptian government of Mubarak to be an oppressor because it has abided Jewish migration to Israel while seeking to decrease Muslim births. Holding these views, Rahman believes that jihad against Egypt and the United States is mandated by the Qur'an.1 Formation of a jihad army made up of small "divisions" and "battalions" to carry out this jihad was therefore necessary, according to Rahman, in order to beat back these oppressors of Islam including the United States. Tr. 2197.2

Although Rahman did not arrive in the United States until 1990, a group of his followers began to organize the jihad army in New York beginning in 1989. At that time, law enforcement had several of the members of the group under surveillance. In July 1989, on three successive weekends, FBI agents observed and photographed members of the jihad organization, including (at different times), Nosair, Hampton-El, Mahmoud Abouhalima, Mohammad Salameh, and Nidal Ayyad (the latter three of whom were later convicted of the World Trade Center bombing, see Salameh, 152 F.3d at 161), shooting weapons, including AK-47's, at a public rifle range on Long Island. Although Rahman was in Egypt at the time, Nosair and Abouhalima called him there to discuss various issues including the progress of their military training, tape-recording these conversations for distribution among Rahman's followers. Nosair told Rahman "we have organized an encampment, we are concentrating here." Govt. Ex. 851 at 2-3.

On November 5, 1990, Rabbi Meir Kahane, a former member of the Israeli parliament and a founder of the Jewish Defense League, gave a speech at the Marriot East Side Hotel in New York. Kahane was a militant Zionist, who advocated expelling Arabs from Israel. The content of this speech was a plea to American Jews to emigrate and settle in Israel. Nosair and possibly Salameh and Bilal Alkaisi, another member of the group, attended the speech. After the speech, as Kahane stood talking with the crowd, two shots were fired and Kahane was hit in the neck and chest.

Nosair, whom witnesses observed with a gun in hand immediately after the shooting, then ran toward the rear door of the room, trailed by one of the onlookers. At the door, 70-year-old Irving Franklin sought to impede Nosair's flight. Nosair shot Franklin in the leg, and fled the room. Outside the hotel Nosair encountered uniformed postal police officer Carlos Acosta. Acosta tried to draw his weapon and identify himself, but before he could fire, Nosair fired two shots at him. The first of these shots hit Acosta in the chest but was deflected into his shoulder by a bullet-proof vest he was wearing, and the second just missed Acosta's head. Despite being shot, Acosta returned fire, hitting Nosair in the neck. Nosair fell to the ground, dropping his weapon, a .357 caliber magnum revolver, at his side. Acosta recovered the weapon and detained Nosair. Ballistics testing showed that the weapon recovered from Nosair was the weapon that fired projectiles found in the room in which Kahane and Franklin had been shot, as well as in the area Acosta had been shot.

Subsequent to these events, law enforcement personnel executed search warrants for Nosair's home, car, and work lockers. Among the items seized in these searches was a handwritten notebook, in which Nosair stated that to establish a Muslim state in the Muslim holy lands it would be necessary:

to break and destroy the morale of the enemies of Allah. (And this is by means of destroying) (exploding) the structure of their civilized pillars. Such as the touristic infrastructure which they are proud of and their high world buildings which they are proud of and their statues which they endear and the buildings in which they gather their heads (leaders).

Tr. 3962-63.

While Nosair was at the prison ward of Bellevue Hospital following the shooting, Nosair stated in response to a question from a treating physician that he had no choice but to kill Kahane, and that it was his "duty." Tr. 9244-46. After Nosair was moved from Bellevue to Rikers Island, he began to receive a steady stream of visitors, most regularly his cousin El-Gabrowny, and also Abouhalima, Salameh, and Ayyad. During these visits, as well as subsequent visits once Nosair was at Attica,3 Nosair suggested numerous terrorist operations including the murders of the judge who sentenced him and of Dov Hikind, a New York City Assemblyman, and chided his visitors for doing nothing to further the jihad against the oppressors. Nosair also tape recorded messages while in custody, including one stating:

God the Almighty . . . will facilitate for the believers to penetrate the lines no matter how strong they are, and the greatest proof of that [is] what happened in New York. God the Almighty enabled His extremely brave people, with His great power, to destroy one of the top infidels. They were preparing him to dominate, to be the Prime Minister some day. They were preparing him despite their assertion that they reject his agenda . . . and that he is a racist.

Govt. Ex. 163R2 at 1.

During Nosair's state trial in 1991, an FBI informant, Emad Salem, began to befriend various of Rahman's followers in an attempt to infiltrate the jihad organization.4 At that trial, Salem met El-Gabrowny, Nosair's cousin, who was raising money to aid in Nosair's defense. Salem also met other regular attendees such as Siddig Ibrahim Siddig Ali, Abouhalima, Ali Shinawy, Hamdi Moussa, and Ahmed Abdel Sattar. Salem, accompanied by El-Gabrowny, also met with Nosair. El-Gabrowny introduced Salem as "a new member in the family." Tr. 4713-15.

As a result of these contacts, Salem traveled to Detroit with Rahman and others to attend a conference on the Islamic economy. During this trip, Salem, seeking to ingratiate himself to Rahman, informed Rahman of his prior service in the Egyptian military during the 1973 conflict with Israel. Rahman told Salem that this was not jihad because he had been paid to fight by an infidel government. Rahman also told Salem that he could make up for this, however, by assassinating Mubarak, a "loyal dog to the Americans." Tr. 4633-34.

Before the Nosair trial ended, Salem was invited for dinner at El-Gabrowny's house. During dinner, El-Gabrowny indicated he was concerned about being bugged by the FBI, turned up the television, and then discussed construction of high-powered explosives with Salem. Salem testified that after this dinner at El-Gabrowny's house, bombing became a frequent topic of conversation between them. By early 1992, Rahman had also welcomed Salem into the group. Rahman specifically praised Salem for attempting to restart paramilitary training with the group, noting that there would come a day when the training would be needed.

Mohammad Saad, the cousin of Sattar and a participant in the jihad group, developed a plan to get Nosair out of jail and confided the plan to Salem. Salem repeated the plan to El-Gabrowny, who cautioned them to slow down and await the outcome of Nosair's appeal. After being badgered by Nosair to take action, El-Gabrowny met with Salem and told him that he was in touch with "underground people" who could help them construct bombs. Tr. 4730-31. El-Gabrowny instructed Salem on the superiority of remote detonators rather than timers, describing to Salem how a remote detonator could assist in bombing Dov Hikind.

In June 1992 El-Gabrowny visited Nosair again in prison. Upon his return, he instructed Salem and Shinawy that Nosair wanted to see them. Salem testified that, when they made the visit, Nosair berated them for not proceeding with bombing plans and directed Shinawy to seek a fatwa from Rahman approving the bombings. On the way home from the visit, Shinaway told Salem that the planned operation would involved twelve bombs. Shinawy also explained that they would need guns in case they encountered police during the deployment, indicating that his source for firearms was Hampton-El.

Two days later Salem went to El-Gabrowny's house and found Shinawy already there. The three agreed that they would try to secure a "safehouse" for constructing bombs, and El-Gabrowny committed to attempt to obtain detonators from Afghanistan. A few days later, Shinawy summoned Salem to the Abu Bakr Mosque where he introduced Salem to Hampton-El. Salem and Shinaway explained to Hampton-El that they were making bombs but that they were having trouble getting detonators. Hampton-El said that he had access to "ready-made bombs" for $900 to $1,000 apiece. Tr. 4932-33, 6485-86. He also offered to obtain a handgun for Salem. A few days later Shinaway gave Salem a handgun presumably from Hampton-El.

In early July 1992, a rift developed between Salem and the FBI, and it was agreed that Salem's undercover investigation would be terminated. To explain his disappearance, Salem told El-Gabrowny that he needed to go to Spain for a while to take care of a problem in his jewelry business.

In late 1992, the paramilitary training resumed, led by Siddig Ali and Hampton-El on weekends between October 1992 and February 1993. Defendants Amir and Fadil Abdelgani and Elhassan all participated in the training camp, as did Abdo Haggag, an Egyptian spy who testified for the Government during the trial. The purpose of the training was to teach the participants jihad tactics. There was talk that jihad was needed in Bosnia, and that some of the trainees might go there.5 As Siddig Ali later explained to Salem, the training was meant to prepare the trainees for jihad wherever it was needed. During training, Siddig Ali reported to Rahman, and Rahman offered his insights into the training.

In the midst of this training, Hampton-El sought detonators and "clean" guns from Garrett Wilson, a cooperating witness for the U.S. Naval Investigative Service, who testified for the Government at trial. Tr. 10748-60. Hampton-El explained that he wanted to train a group of people in "commando tactics" and discussed training techniques and bomb identification. Tr. 10758-59.

During this time, Ramzi Yousef (another compatriot who was later convicted of the World Trade Center bombing, see Salameh, 152 F.3d at 161) arrived in the United States. Rahman was making numerous calls to overseas numbers, including a Pakistan number which Yousef had inscribed in a bomb making pamphlet. Rahman, Salameh, and Yousef also made several calls to the same number in Pakistan in November. Nosair, speaking with his wife from prison, said, "[A]nd what will happen in New York, God willing, it will be . . . because of my prayers." Govt. Ex. 128T at 7.

In January 1993, Rahman appeared at a conference in Brooklyn, and voiced his beliefs in violent jihad. Rahman further stated that being called terrorists was fine, so long as they were terrorizing the enemies of Islam, the foremost of which was the United States and its allies. While building the World Trade Center bomb, the builders kept in close phone contact with El-Gabrowny and Rahman. Salameh and Yousef repeatedly called El-Gabrowny at home and at the Abu Bakr Mosque and Rahman at home. In December 1992 and January 1993, El-Gabrowny visited Nosair at Attica and later arranged for the World Trade Center bombers to visit Nosair in the weeks preceding the bombing (Abouhalima visited Nosair on January 2 and February 7, and Salameh visited him on February 13).

On February 24, 1993, Salameh rented a van to be used in the World Trade Center bombing. As identification, he used a New York license bearing his own name and El-Gabrowny's address. As Ayyad was making arrangements to purchase the hydrogen gas to be used in the World Trade Center bomb, he called El-Gabrowny. On February 26, 1993, the World Trade Center complex was bombed, causing six deaths and massive destruction.

On March 4, 1993, federal agents executed a search warrant for El-Gabrowny's home. Salameh's use of El-Gabrowny's address when renting the van used in the bombing provided the basis for the warrant. The warrant allowed a search for explosives and related devices. The search of El-Gabrowny's home revealed, among other things, stun guns6 and taped messages from Nosair urging fighting and jihad in response to the Jewish immigration to Israel. Just prior to executing the search warrant, the agents encountered El-Gabrowny as he left the building and then, seeing them, started back toward it. The agents stopped and frisked him. El-Gabrowny became belligerent and assaulted two agents. On his person, the agents found five fraudulent Nicaraguan passports and birth certificates with pictures of Nosair and his wife and children.

After the bombing of the World Trade Center, Salem again began working for the FBI as an informant. In March of 1993, President Mubarak was scheduled to visit New York. Certain members of Rahman's group saw this visit as an opportunity to assassinate him, in the words of Siddig Ali, "to execute the desire of the Sheik." Tr. 10087-89, 10295-96. In seeking financing for this plan, Siddig Ali called a man in the United Arab Emirates for funding, stating that Rahman would vouch for him. Siddig Ali also contacted a source in the Sudanese government to get a copy of Mubarak's itinerary while in New York. Siddig Ali described the plan to Abdo Mohammed Haggag, a Rahman confidant who later cooperated with the Egyptian and United States authorities, and noted that it would be carried out by participants in the paramilitary training including Elhassan and Amir Abdelgani. Siddig Ali said that those men would assist and did not need to be told anything until the last moment. Haggag confronted Amir about the plan. Amir said that Siddig Ali had not informed him but that he was ready for any operation when called. Nothing came of this plan because Haggag secretly gave the Egyptian government information about the plot, and the New York part of Mubarak's trip to the United States was canceled.

Siddig Ali then proposed a new round of bombings. In late April 1993, he became friendly with Salem, who was, by that point, tape recording his conversations for the FBI. Salem agreed to assist Siddig Ali in putting together the bombs but stated that he would have no part in deploying them. After contemplating bombing a U.S. armory, Siddig Ali proposed bombing the United Nations complex. When initially discussing this plan with Salem, he stated that Rahman had approved the attack on the United Nations, and had called it not merely permissible, but a "must" and a "duty." Tr. 5527-28. Siddig Ali invited Salem to discuss these matters directly with Rahman, but reminded him that because of the surveillance, to use caution in so doing. Caution, as defined by Siddig Ali, included phrasing statements in a broad and general manner, and assuring that Rahman was insulated from active involvement in the plot.

Salem met with Siddig Ali again on May 12, pretending that he had surveyed locations for use as a bomb-making safehouse and that he had settled on a garage in Queens that was renting for $1,000 a month. This safehouse was actually rented by the FBI, and the FBI installed videocameras and surveillance equipment in the safehouse before members of the group began using it.

Taking Siddig Ali up on his earlier invitation, Salem had a private conversation with Rahman on the night of May 23, 1993. At the bidding of Siddig Ali, Salem began the conversation by pledging allegiance to Rahman. Salem then told Rahman that he and Siddig Ali were planning to "do a job." Govt. Ex. 311T at 3. Salem explicitly asked Rahman about the United Nations. Rahman replied that bombing the United Nations was "not illicit, however will be bad for Muslims." Id. at 6-7. Rahman instead told Salem to "Find a plan, find a plan . . . to inflict damage on the American army itself." Id. Salem then asked about a strike on the FBI headquarters in New York. Rahman told him to "wait for a while," and to "plan carefully." Id. at 7.

Salem recounted this conversation to Siddig Ali, who stated that when he had discussed the United Nations issue with Rahman, Rahman had been in favor of the plan. Subsequently, in discussing the plan to bomb the United Nations with Hampton-El, Siddig Ali told him that he had received an "official fatwa" from Rahman regarding the plan. Govt. Ex. 315T at 7-9. Siddig Ali also told Khallafalla and Amir Abdelgani the same thing, stating the Rahman's approval was necessary whenever one did something "basically unlawful," which would be wrong unless the "mission [was] under the flag of God and his messenger." Govt. Ex. 320T at 7-9.

As a result of the failure of the plan to execute Mubarak, there was some speculation by members of the group that Siddig Ali was an informer. Siddig Ali and Salem conversed one day with Rahman about the issue. Rahman voiced his suspicions that Siddig Ali was the informer. Ironically, Salem secretly tape recorded this conversation for the Government. During the conversation, Rahman revealed that Abouhalima, one of the World Trade Center bombers, was supposed to have fled to Sudan, not to Egypt, where he was subsequently arrested after the bombing. After the discussion, Siddig Ali told Salem that Rahman had ordered that they be circumspect when discussing their plans with him so that he would not be incriminated.

On May 27, 1993, Siddig Ali introduced Salem to Amir Abdelgani and Fares Khallafalla near the Medina Mosque. The four then traveled to the safehouse where they discussed the bombing plans. At that time Siddig Ali indicated he wanted to bomb the United Nations and the Lincoln and Holland Tunnels. Siddig Ali outlined the proposed plan for three explosions five minutes apart, sometimes sketching on a piece of cardboard. The cardboard was later recovered at the safehouse.

Over the next few days, Siddig Ali and Amir Abdelgani (once accompanied by Salem) drove together to the Lincoln and Holland tunnels, the United Nations, and the Federal Building in Manhattan to scout the targets and examine traffic conditions. During one of these scouting trips, Amir suggested that they consider bombing the diamond district in Manhattan because that would be like "hitting Israel itself." Govt. Ex. 323T at 6-9. At the United Nations, Siddig Ali noted that a bomb detonated at the entrance would topple the building. The men later gathered at the safehouse to discuss the operation.

On May 30, 1993, Hampton-El met with Siddig Ali and Salem at Hampton-El's safehouse, which he used for conducting business. Siddig Ali and Salem explained that they needed detonators, and Hampton-El said he would try to locate some for them. The three discussed the plan to blow up the United Nations and the tunnels. On June 4, 1993, Siddig Ali arranged to go with Salem to meet Mohammed Saleh. Siddig Ali explained to Salem that Saleh was an important supporter of jihad activities who might assist in the bombing campaign. Saleh was the owner of two gasoline stations in Yonkers, New York. During dinner at Saleh's house, Siddig Ali explained the bombing plan to Saleh, noting the different targets on a piece of paper. Salem was asked by Siddig Ali to eat the piece of paper once Siddig Ali felt that Saleh understood the plan. During dinner, Saleh agreed to help purchase military equipment.

Over the next few weeks, Siddig Ali brought Alvarez and Elhassan into the group. Various members of the group began to collect the items they believed were needed to prepare the bombs. The group also met frequently to refine the bombing plan. On June 13, 1993, Salem and Khallafalla purchased two timers for the bombs in Chinatown. On June 15 and 18, Hampton-El left messages for Siddig Ali indicating that he was still searching for detonators. On June 19, Amir Abdelgani, Khallafalla, Salem, Alvarez, and Siddig Ali met at Siddig Ali's house to discuss the details of the plan, including the number of people and bombs needed to carry it out. Siddig Ali indicated that they needed fertilizer, fuel, and stolen cars.

Amir, Alvarez, and Salem attempted on the evening of June 19 to buy stolen cars to deliver the bombs and to use as getaway cars during the bombing. Although they located a source for stolen cars, they did not have sufficient funds to purchase the cars. That same day, Elhassan met with a friend who was an engineer to discuss the feasibility of blowing up the tunnels and to determine where the weakest points of the tunnels were located.

On June 21, 1993, the group met at the Mosque and drove to the safehouse. Amir, Siddig Ali, and Elhassan discussed a method of communicating at the tunnels so that both of them would blow up at the same time, and planned their escapes after the bombing. Amir and Siddig Ali advised everyone that, if they were caught, not to talk until their lawyers were present. That evening Alvarez tried again, unsuccessfully, to obtain cars for the operation.

On June 22, 1993, after buying five 55-gallon steel barrels from a Newark drum business, Siddig Ali and Amir went to Saleh's gas station to get fuel for the bombs. Saleh agreed over the phone to provide the fuel. Belhabri, Saleh's employee, filled two of the drums with $140 worth of diesel fuel. Saleh agreed to keep two of the empty barrels in his garage. Siddig Ali and Amir did not pay for the fuel, but Belhabri made out a receipt on which he recorded the license plate of the van. Siddig Ali wrote a phony signature on the receipt.

The next day, June 23, Amir returned to Saleh's gas station with Fadil to fill the remaining three 55-gallon drums with diesel fuel. They met Saleh who called his employee at the other station to tell him to wait for the two so that they could get fuel before the station closed. Amir called Siddig Ali and asked if he could tell Fadil the bombing plan since Amir thought that Fadil would eventually catch on. Siddig Ali gave him permission to tell Fadil. Amir and Fadil obtained fuel. When Belhabri wrote out a receipt, Amir objected and called Saleh who then told Belhabri not to put the license number on the receipt but just to write "Sudanese." Belhabri provided $151 worth of fuel. At the same time, Siddig Ali and Salem were purchasing more fertilizer for the bombs.

Later in the day, Alvarez gave Siddig Ali a 9mm semi-automatic rifle with an empty 25-round magazine. Siddig Ali and Salem took the gun from Alvarez's apartment in New Jersey to the safehouse. A little after 8 p.m. that evening, Amir and Fadil arrived at the safehouse with the fuel. Amir then washed down the van so that there would be no traces left of the fuel. For the next hour, Amir, Fadil, Siddig Ali, and Salem discussed the bombing plan. At one point, Fadil was asked whether he would participate, and he responded that he had to perform an Istikhara prayer (a prayer seeking divine intervention to guide one's decision in a course of action). After going to the Mosque to pray, Fadil met Elhassan and Alvarez, and they drove back to the safehouse.

Back at the safehouse, Amir began mixing the fuel and the fertilizer, and watched a videotape showing the tunnels that had been shot earlier in the day by Siddig Ali and Salem. Elhassan, Alvarez, and Fadil then returned, joined Amir, and began stirring the fuel and fertilizer together. They discussed the timers and the placement of bombs. At about 2 a.m. on the morning of June 24, FBI agents raided the safehouse and arrested the defendants, seizing the fuel and fertilizer mixture and the cardboard diagram Siddig Ali had periodically used to sketch the bombing plan.

A few hours before arrests were made at the safehouse, FBI agents arrested Saleh at his apartment in Yonkers. At FBI headquarters, Saleh denied having sold fuel to the men but said that Salem had come to his station demanding fuel on two occasions. About a week later on July 5, 1993, Saleh called one of his employees from prison and instructed him to tell Belhabri to destroy the two receipts documenting the fuel given to the Abdelganis and Siddig Ali. Saleh said that it would be "dangerous" for Belhabri if he failed to follow these instructions.

The defendants presented their case for two months, calling 71 witnesses. Hampton-El, Elhassan, Alvarez, and Fadil Abdelgani each testified on his own behalf. The specific defenses put forth by the individual defendants will be set out below as they become relevant to particular claims on appeal. Siddig Ali, among others, was charged in the same indictment as the defendants but was not part of the trial because he pleaded guilty to all counts with which he was charged and cooperated, to a degree, with the Government.

The jury trial in the case ran from January 9, 1995, to October 1, 1995. The jury returned verdicts finding defendants guilty on all submitted charges, except that Nosair and El-Gabrowny obtained not guilty verdicts on the Count Five bombing conspiracy charges. The defendants were sentenced as follows: Rahman and Nosair, life imprisonment; El-Gabrowny, 57 years; Alvarez, Hampton-El, Elhassan, and Saleh, 35 years; Amir Abdelgani and Khallafalla, 30 years; Fadil Abdelgani, 25 years. The sentences are more fully explained in Part IV(A), infra.

A. Seditious Conspiracy Statute and the Treason Clause

Defendant Nosair (joined by other defendants) contends that his conviction for seditious conspiracy, in violation of 18 U.S.C. § 2384, was illegal because it failed to satisfy the requirements of the Treason Clause of the U.S. Constitution, Art. III, § 3.

Article III, Section 3 provides, in relevant part:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder or delay the execution of any law of the United States, or by force to seize, take, or possess any prope