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United States v. Mohammad

United States District Court, N.D. Ohio, Western Division

June 8, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
YAHYA FAROOQ MOHAMMAD, Defendants. UNITED STATES OF AMERICA, Plaintiff,
v.
YAHYA FAROOQ MOHAMMAD, Defendant.

          OPINION AND ORDER

          EDMUND A. SARGUS, JR. CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Yahya Farooq Mohammad's ("Farooq") Motion for Defense Witness Immunity or, in the Alternative, for a Missing Witness Instruction (the "Motion") ['15 ECF No. 225; '16 ECF No. 41]. For the following reasons, Farooq's Motion is DENIED.

         I.

         Farooq and his co-Defendants, Ibrahim Zubair Mohammad, Sultane Roome Salim, and Asif Ahmed Salim, were indicted on September 30, 2015, and charged with (Count 1) conspiracy to provide and conceal material support to terrorists, in violation of 18 U.S.C. § 2339A; (Count 2) providing material support to terrorists, in violation of 18 U.S.C. § 2339A; (Count 3) conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (brought against Farooq and Ibrahim only); and (Count 4) conspiracy to obstruct justice, in violation of 18 U.S.C. § 1512(k). ('15 Indictment at 12-72 ['15 ECF No. 1].) These charges form the basis of case number 3:15-CT-358 (the '15 case).

         The Government accuses Defendants of conspiring to provide, and actually providing, funds and other material support to al-Awlaki for the preparation and execution of terrorist attacks and killings. (See '15 Indictment at 12, 68.) The Government contends that Defendants conspired to obstruct its investigation into their illicit fundraising by making false statements to the FBI and destroying or concealing records. (Id. at 65-67, 71-72.) And as to Farooq and Ibrahim, the Government additionally alleges that they conspired to raise money for al-Awlaki through various fraudulent credit card and PayPal transactions. (Id. at 68-71.)

         While in the Lucas County Corrections Center awaiting trial in the ' 15 case, Farooq allegedly attempted to hire a hitman to murder United States District Judge Jack Zouhary, the district judge presiding in the '15 case at the time. ('16 Indictment at 1 ['16 ECF No. 1].) Sometime in March 2016, Farooq allegedly told another inmate ("Individual A") that he wanted to hire someone to kill Judge Zouhary. (Id. ¶ 4.) Individual A promptly relayed this alleged statement to the FBI and agreed to record future conversations with Farooq regarding the alleged murder-for-hire plot. (See Mot. at 4-6 ['15 ECF No. 225; '16 ECF No. 41].)

         On April 8, Farooq again allegedly mentioned his desire to have Judge Zouhary killed. ('16 Indictment ¶ 5.) In response, Individual A introduced Farooq to an FBI undercover employee ("UCE") posing as a hitman willing to kill Judge Zouhary for $15, 000, a sum that included a $ 1, 000 down payment. (Id. ¶ 6.) Farooq purportedly called the UCE and, using the code that Farooq and Individual A had developed to disguise Farooq's communications, requested that the UCE murder the Judge. (Id., ¶¶ 7-8.) Farooq, the Government contends, arranged for Ms wife to meet with the UCE and make the $1, 000 down payment. (See Id. ¶¶ 9-14.) And Farooq also began arranging for his wife to pay the UCE the remaining balance. (See Id. ¶ 15.) Farooq's wife allegedly met with the UCE twice. At the first meeting, Farooq's wife purportedly delivered the down payment. (Id. ¶ 13.) At the second meeting, the UCE showed Farooq's wife a photo of a body. (Id. ¶ 18.) The UCE represented that the dead man in the photo was Judge Zouhary. (Id.) The UCE also inquired about the rest of his payment. (Id.) Farooq's wife reviewed the photo and indicated that she would consult with her husband about the payment. (See id.)

         Following an investigation into Farooq's alleged attempt to have Judge Zouhary killed, Farooq was charged on July 6, 2016, with (Count 1) attempted first degree murder of a federal officer or employee, in violation of 18 U.S.C. § 1114(3); (Count 2) solicitation to commit a crime of violence, in violation of 18 U.S.C. § 373(a); and (Count 3) the use of interstate commerce facilities in the commission of murder-for-hire, in violation of 18 U.S.C. § 1958(a). ('16 Indictment at 5-7.) These charges form the basis of case number 3:16-cr-222 (the '16 case).

         II.

         In the present Motion, Farooq asks the Court to grant use immunity to Individual A, a potential defense witness. (Mot. at 1 ['15 ECF No. 225; '16 ECF No. 41].) If the Court decides not to grant Individual A use immunity, Farooq requests, alternatively, that the Court give a missing witness instruction at trial. (Id. at 1, 11.)

         A. Judicially Compelled Witness Immunity

         Farooq contends that Individual A's testimony is crucial for his defense of the '16 case. (See Mot. at 1-2.) Because of his central role in helping the Government investigate the alleged murder-for-hire scheme, Individual A could provide testimony that would support Farooq's entrapment defense. (See id.) Farooq served a subpoena directing Individual A to appear as a witness at trial. (Id. at 2.) Individual A, however, has indicated through counsel that he intends to invoke his Fifth Amendment right against self-incrimination. (Id.) Based on Individual A's representation that he will invoke the Fifth Amendment to avoid testifying, and also based on Individual A's history of dishonesty, incentive to ingratiate himself with the FBI, far-fetched allegations regarding additional plots ostensibly concocted by Farooq, and repeated efforts to contact Farooq's attorney, Farooq speculates that Individual A likely lied to the Government about Farooq's role in developing the alleged murder-for-hire plot. (See Id. at 2-8.)

         A district court "is without authority [under the federal use immunity statute] to either grant immunity to a witness who asserts his Fifth Amendment privilege against self incrimination, or to force the government to do so." United States v. Talley, 164 F.3d 989, 997 (6th Cir. 1999); see Pillsbury Co. v. Conboy, 459 U.S. 248, 261 (1983) ("No court has authority to immunize a witness."). Under 18 U.S.C. § 6003, the responsibility of determining when and to whom to grant immunity "is peculiarly an executive one, and only the Attorney General or a designated officer of the Department of Justice has authority to [make that determination]." Pillsbury Co., 459 U.S. at 261 (citing 18 U.S.C. §§ 6002, 6003). A prosecutor may request immunity when "in his judgment" it is "necessary to the public interest." 18 U.S.C. § 6003. Nothing in the statute mandates that the Government grant immunity to a defense witness. See id; United States v. Mohney, 949 F.2d 1397, 1401 (6th Cir. 1991).

         The Sixth Circuit has discussed, but not explicitly accepted, two limited circumstances in which a district court might be warranted in granting immunity as an exercise of the court's inherent power: (i) where a witness possesses exculpatory testimony that is essential to an effective defense and that strongly outweighs the Government's interests in declining to offer immunity and (ii) where the prosecutor has engaged ...


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