United States District Court, N.D. Ohio, Western Division
OPINION AND ORDER
A. SARGUS, JR. CHIEF UNITED STATES DISTRICT JUDGE
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.
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).
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.
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].)
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.)
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).
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.)
Judicially Compelled Witness Immunity
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.)
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).
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 ...