Case 1:07-cr-00543-DLI Document 135 Filed 10/29/09 Page 1 of 14 PageID #: 763

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

vs.

CASE NO. 3:07cr543/DLI

ABDUL KADIR, et. al.,

Defendant(s).
______________________________/

MOTION TO SEVER DEFENDANTS AND MOTION TO SUPPRESS EVIDENCE

INTRODUCTION
The Defendant, through undersigned counsel, respectfully moves this Honorable Court
for an Order that he be granted a severance and separate trial from his co-defendants in the
Indictment herein from the offenses charged against the other defendants or for such other relief
as justice may require, upon the grounds that the Defendant, Mr. Abdul Kadir, is prejudiced by
the joinder of defendants herein.
Mr. Kadir also request this Honorable Court to suppress all things seized pursuant to a
search warrant covering the following described premises: 38 River Estate Circular Road Diego,
Martin, Trinidad and Tobago, 95 Riverside Drive, Watooka Linden, Guyana, and also Mr.
Kadirs computer flash drive seized from Mr. Kadirs personal luggage after his arrest. Mr.
Kadir also request this Honorable Court to suppress all things seized pursuant to any warrantless
searches, more specifically Mr. Kadirs personal belongings seized upon his arrest in Trinidad.
SEVERANCE OF DEFENDANTS
Mr. Kadir has been indicted and charged with three other individuals with Conspiracy to
Attack Public Transportation Systems and other terrorist acts against the United States.

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The relief sought is an Order severing the offenses charged against the Defendant, Abdul
Kadir, in the Indictment from the offenses charged against the other defendants and for and
Order granting the Defendant, Abdul Kadir, a separate trial. Because there are no factual
disputes, but merely legal disputes, an affidavit from defendant is not necessary.
Federal Rule of Criminal Procedure 14 provides:
Relief from Prejudicial Joinder. If it appears that a defendant or the government is
prejudiced by a joinder of offenses or of defendants in an indictment or by such joinder
for trial together, the Court may order an election or separate trials of counts, grant a
severance of defendants or provide whatever other relief justice requires.
Severance for prejudicial joinder under Rule 14 is within the discretionary power of the trial
court. U. S. v. Spinelli, 352 F.3d 48, 54 (2nd Cir. 2003).
Severance is an appropriate remedy in cases where it is likely that a joint trial will result
in substantial prejudice to the right of the defendants to a fair trial. U.S. v. Cardascia, 951
F.2d 474, 484 (2nd Cir. 1991); Burton v. United States, 391 U.S. 123, 131 n.6 (1968). The United
States Supreme Court has instructed that a district court should grant severance under Rule 14
only if there is a serious risk that a joint trial would compromise a specific trial right of one of
the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.
U.S. v. Basciano, 2007 WL 3124622 (E.D.N.Y. Oct. 23, 2007).
In order to prevail, the defendant must show not simply prejudice but substantial
prejudice. The United States Supreme Court in United States v. Zafiro, 506 U.S. 534, 539 (1993)
identified a non-exhaustive set of situations in which such a risk might occur:
Such a risk might occur when evidence that the jury should not consider against a
defendant and that would not be admissible if a defendant were tried alone is ad-

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mitted against a codefendant. For example, evidence of a codefendants wrongdoing

in some circumstances erroneously could lead a jury to conclude that a defendant
was guilty.
Id.; see also United States v. Yousef, 327 F.3d 56, 150 (2nd Cir. 2003); and United States v.
Basciano, 2007 WL 3124622 E.D.N.Y. Oct. 23, 2007).
In the case at bar, Mr. Kadirs joinder with his co-defendants substantially prejudice his
right to a fair trial because he believes it prevents the jury from making a reliable judgment about
his guilt or innocence. Mr. Kadir is alleged to have entered into the alleged conspiracy
approximately three months before the investigation was terminated by the arrest of the
defendants. Mr. Kadirs co-defendants in this matter, specifically Mr. Defreitas and Mr. Nur,
have been alleged to have been involved in this alleged conspiracy a full eight months before Mr.
Kadirs allegedly entered into the conspiracy.
Certain acts that will be attributed to Mr. Kadirs co-defendants occurred well before
Mr. Kadir is alleged to have joined the conspiracy and any evidence of wrongdoing, proven or
unproven, attributed to by Mr. Kadirs co-defendants in and of itself will erroneously lead the
jury to conclude that Mr. Kadir is also guilty. The spillover effect is such that Mr. Kadirs right
to a fair trial is substantially prejudice.
Too often, in trials with multiple defendants, the jury loses sight of the evidence against
each of the defendants because of the length of the trial, the great amount of evidence, and the
complexity of the case, and as a result, the right of a defendant to have his case judged separately
is seriously prejudiced. Spinelli, 352 F.3d at 55. For the foregoing reasons, Mr. Kadir
respectfully request that the Court order the servance of Mr. Kadir from his co-defendants and
order a separate trial.

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MOTION TO SUPPRESS all Property belonging to Abdul Kadir

For the purposes of this section of the motion the following facts are relevant. They are
based on conversations with defendant Abdul Kadir, the discovery turned over by the
government and information and belief. Because there are no factual disputes, but merely legal
disputes, an affidavit from defendant is not necessary.
Abdul Kadir was en route from Trinidad to Venezuela on June 1, 2007, when, after the
plane had already begun taxying, Trinidadian officials stopped the aircraft and ordered Kadir to
deplane.
Kadir and his bags were taken to a custodial holding room where he waited several hours.
He saw two white men enter and speak to Trinidadian authorities. He was then told by a Sergeant
Barrington that he was to be taken to Police Central in Port of Spain, Trinidad.
At police headquarters he waited until approximately 8 p.m. to be seen by Assistant
Commissioner Charles Frederick, at which time he was formally arrested for conspiracy to
commit a terrorist act. A Trinidad-and-Tobago search warrant, permitting police to search the
premises of Khalid Hassan of No. 38 River Estate Circular Road Diego Martin, in relation to
Abdul Kadir, was issued on June 2, 2007.
Subsequent to his arrest, Kadirs immediate belongings, those he carried on the plane and
his bags in the hold, were searched and seized. His home in Guyana was also searched pursuant
to what appears to be a Guyanese search warrant.1
American police agents participated in the search, took control of boxes of property
recovered therein, and later obtained a search warrant, to be executed between July 5 and July
1

There appears to be two Guyanese search warrants: one dated June 3 rd, 2007, and executed on that date, (Ex. A);
the other dated June 10th, 2007, and executed on that date. (Ex. B) Counsel is unsure why two search warrants were
needed for the same premises, but suspects that American agents, not satisfied with the first search, insisted
Guyanese officials search the home a second time, at which point they took part and wrote a lengthy index of what
was recovered therein. (Ex. C)

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15th, 2007, in the United States to search the hard drives taken from defendants computers. (Ex.
D)
Another arrest warrant, for reasons unknown, was issued against Kadir by Trinidad-andTobago police on July 20, 2007, even though he had been in continuous custody in Trinidad
since June 1st, 2007. (Ex. E)
A U.S. complaint filed under seal on June 1, 2007, by Robert Addonizio, requested an
arrest warrant of Kadir in relation to the case. (Ex. F). Counsel does not have the arrest warrant
itself, and no further information about how or whether these were transmitted to Trinidadian
police prior to Kadirs arrest.
The arrest itself and all searches pursuant to it were done at the behest of the U.S.
government with the cooperation of either Trinidadian or Guyanese law enforcement. The
investigation in the case started in the U.S. when a government operative, Steven Francis, Aka
the Source, Aka, Annas, befriended lead-defendant, Russell Defreitas to begin looking for
ways to finance an alleged plot to blow up fuel tanks at Kennedy airport.
Mr. Kadir had never been investigated by Guyanese or Trinidadian police until those
forces were instructed to do so by U.S. police. American agents directly instructed foreign
police when to arrest Mr. Kadir, and what to seize with his arrest. They were present at the scene
of his arrest, when his property was searched and when his home was searched in Guyana.
One agent told Kadir while he was being flown to the United States to stand trial on
charges of terrorism that they found photos from his flash drive so incriminatory that he would
not be able to ever see his family again, and that none of them could visit him in the United
States.
Issues :

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1. When does the U.S. Constitution protect foreign nationals in foreign lands from illegal search
and seizure?
2. Was Kadirs arrest in Trinidad legal?
3. Were the subsequent searches legal?
a) the search of his property in Trinidad.
i. what he carried, on his person
ii. in his luggage,
iii. what was taken from the premises of Khalid Hassan, 38 River Estate Road Diego Martin.
(Ex. G)
b) the search of his home in Guyana,
c) the search of his computer hard drives.
LAW
The U.S. Constitution extends its protections against illegal search and seizure when
foreign law enforcement acts as agents of U.S. police.2
The U.S. Constitution, 4th Amendment, protects American citizens from police excess in
stops and seizures to the extent that police must have probable cause to effectuate the stop and
arrest. While this protection is geared primarily for U.S. residents on American soil, in certain
circumstances where U.S. police organize and oversee arrests abroad, even if the person arrested
is not a U.S. citizen or permanent resident, 4th Amendment protections still apply.
Pursuant to the joint-venture doctrine, where U.S. officials work hand-in-hand with
foreign police in arrests and seizures, courts have invoked the 4th Amendment. U.S. v.
Ferguson, 508 F.Supp.2d 1, D.D.C., 2007)(the exclusionary rule may be invoked if American
law enforcement officials substantially participated in the search or if the foreign officials
2

For simplicity sake, this memo will use the term police to refer to any and all law enforcement agents.

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conducting the search were actually acting as agents for their American counterparts. United
States v. Behety, 32 F.3d 503, 510-11 (11th Cir.1994); see also United States v. Peterson, 812
F.2d 486, 490 (9th Cir.1987); United States v. Delaplane, 778 F.2d 570, 573 (10th Cir.1985);
United States v. Morrow, 537 F.2d 120, 139 (5th Cir.1976). This exception is typically referred
to as the Joint Venture Doctrine.)
To be applicable, the court must find that the participation of federal agents was so
substantial as to have converted the search into a joint venture. Stonehill v. United States, 405
F.2d 738, 743 (9th Cir.1968), cert. denied, 395 U.S. 960, 89 S.Ct. 2102, 23 L.Ed.2d 747 (1969);
see also United States v. Verdugo-Urquidez, 856 F.2d 1214, 1224-25 (9th Cir.1988) (discussing
the development of the joint venture doctrine), rev'd on other grounds, 494 U.S. 259, 110 S.Ct.
1056, 108 L.Ed.2d 222 (1990); U.S. v. Rosenthal, 793 F.2d at 1214, 1231 (11th Cir. 1986).3
Police Action Here Was Clearly a Joint Venture
This terrorism investigation initiated in the United States on the hiring of a former
detainee, Stephen Francis. His job was to seek out potential terrorist threats by infiltrating
Moslem meeting centers. In exchange for his information he would receive a lesser sentence on
two pending criminal cases as well as a stipend from the government.
He reported to U.S. police and received funding from them and permission to travel when
needed. He tape recorded phone calls and real-time encounters on police instruction, and
ultimately traveled to Guyana to search out others potentially interested in the putative plot
developed by him and Russell Defreitas.
3

The Government may claim that the case of U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990), overrules any cases
holding that 4th Amendment protection extends to non-nationals in foreign territories, however, cases cited above
post-date Verdugo-Urquidez, and many district courts continue to follow the joint-venture doctrine. All of the
following decisions post-date Verdugo, supra.: U.S. v. Castro, 175 F.Supp.2d 129, (DCPR, 2001); U.S. v. Barona,
56 F.3d 1087, 1091 (9th Cir. 1995); U.S. v. Ferguson, 508 F.Supp.2d 1 (DDC, 2007); U.S. v. Marzook, 435
F.Supp.2d 708 (ND Ill. 2006). Also see U.S. v. Baboolal, 2006 WL 1674480, (E.D. Wisconsin, 2006) for that
courts discussion of joint-venture law post Verdugo.

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Guyanese and Trinidadian authorities played no role, or a minor role, in the investigation
until the day Kadir was arrested. Any actions taken by foreign police were at the behest of U.S.
police. This includes Kadirs arrest, the search of his belongings at the airport and ultimately his
home in Guyana. (For some reason, police conducted two searches of Kadirs home, presumably
because the first search was inadequate.)
In recognition of the full control U.S. police had over every phase of the mission, U.S.
agents secured a warrant for Kadirs arrest from the EDNY, and assumedly had it executed in
Trinidad. They may even have been part of the actual physical arrest and search at the airport or
police central.
All of the acts of foreign police were initiated by U.S. direction for the ultimate purpose
of extraditing the defendant to the U.S. where he would stand trial for violating U.S. law.
As a Joint Venture, with 4th Amendment Applicability, the Stop Was Illegal
Its difficult to discern, based on the paperwork provided by the government, what basis
Trinidadian officials had to arrest Mr. Kadir; whether the U.S. warrant was transmitted to
Trinidad, and what if any preliminary sharing of information occurred, for example, how was the
warrant executed in Trinidad inter alia through international treaties, by U.S. police themselves,
by foreign police under U.S. supervision. The government must provide this material in order for
the court to determine on what basis Trinidad police arrested Mr. Kadir and to what extent the
U.S. was involved.
If Kadirs arrest occurred pursuant to the U.S. arrest warrant, counsel challenges the
sufficiency of the affidavit on which that warrant was based and the reliability and veracity of the
confidential informant, Stephen Francis (CS) who provided information to secure the warrant.
In order for a court to rely on representations made by a CS, police must demonstrate

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why they believe the information he provided to be reliable by including information that 1)
specified the informants basis of knowledge, and 2) proved the informants veracity. See
Spinelli v. U.S., 393 U.S. 410 (1969) and Aguilar v. Texas, 378 U.S. 108 (1964).
The only information provided by the affiant, Robert Addonizio, a detective from the
Joint Terrorism Task Force, relating to the CS is found in a footnote (Ex. D, p.4) which reads:
2. The government has been working with the Source since 2004. The Source was convicted on
federal drug trafficking and Rico charges in the Southern District of New York in 1996. The
Source was also convicted on drug trafficking charges in New York Supreme Court in 2003. His
sentence in that case is pending as part of his cooperation agreement with the government. In
addition to the expectation of a reduced sentence in exchange for his cooperation, the Source
also receives financial assistance. The Source has provided extremely credible information that
has been corroborated by consensual recordings, e-mails, financial documents, surveillance and
other records and information.
The statement that the Source has provided extremely credible information is
conclusory, and there is no concrete information on what that conclusion is based such as pastarrests secured, recovery of guns or drugs, etc. While some of the taped conversations he
provided police purportedly corroborated some of his information, he did not tape all
conversations, particularly the key conversation when he met Kadir in his home when he alleges
Kadir made incriminating statements.
Counsel submits that information provided by the Source exaggerated and intentionally
misled police to believe more occurred than what in reality happened in order for the Source to
keep his employer, the government, interested.
The courts have held that unlike tips by an identified bystander with no apparent motive
to falsify, United States v. Rollins, 522 F.2d 160, 164 (2d Cir. 1975), tips by paid or criminal
informants are deserving of special scrutiny in probable cause determinations because of
concerns that an informant has concocted his story while pretending to cooperate in order to
harass an innocent person or curry favor with law enforcement. U.S. v. Wagner, 989 F.2d 69
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(2nd Cir. 1993). Information from professional informants raises questions about their veracity
and basis of knowledge, or in other words, from what sources they received their information.
The following are exaggerations or misstatements provided by Francis contained in the
affidavit in support of a search warrant for Kadirs two hard drives:
1. That Defreitas and others in Guyana recruited a confidential source from New York to join
the plot in August 2006. (AK-0299, Ex. D). No one in Guyana recruited Francis. Defreitas and
Francis met in the U.S. purportedly by happenstance. Kadir was never involved in the
development of the plot which allegedly began in 2004. He never even met Defreitas or
Francis until the winter of 2007.
2. That Defreitas and the Source made plans to send an individual to Trinidad to recruit a
known member of a foreign terrorist organization to participate. (AK-0300, Ex.D, p.5)
The person Francis refers to here, purportedly staged a coup attempt in Trinidad some 20-years
ago. No longer considered a known terrorist in his own country, he lives peaceably in Trinidad
without problem.
3. The affidavit exaggerates information and intentionally omits non-inculpatory facts.
It states that a thumb drive in Kadirs possession at the Trinidadian airport includes
documentation between Kadir and individuals in Iran. The fact that this correspondence related
merely to Kadirs planned attendance of an international conference and had nothing to do with
any alleged terrorist activity is not mentioned.
Counsel submits that the exaggerations and misstatements in the affidavit were integral
to the probable-cause finding and therefore asks the court order a Franks hearing. (Franks v.
Delaware, 438 U.S. 154 (1978).)
If the arrest of Kadir was invalid, based on false or exaggerated information, the immediate

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search of his person and belongings was illegal and should therefore be suppressed.4
Information from the Thumb Drive Must be Suppressed
A thumb drive was recovered from Kadir at the airport.5 This device, associated with
storing data from a computer, was seized and searched without a warrant. Counsel submits that
U.S. police should have secured a warrant prior to being permitted to investigate this device.6
Had they not secured a warrant, and no papers relating to this have been presented to counsel,
information secured from the thumb drive must be suppressed.
Further items belonging to Mr. Kadir were seized from a home not belonging to Kadir in
Trinidad pursuant to an apparent Trinidadian search warrant of that address. That warrant only
permitted police to seize Trinidad and Tobago Passports and documents which will afford
evidence as to the commission of an indictable offence namely conspiracy to commit a terrorist
act. (Ex. G)
The seizure of property exceeded the designated limits of the search, and again, counsel
is unaware of what information Trinidadian police possessed authorizing them to conduct the
search. Because, as argued earlier, this was a joint-venture with U.S. police calling the shots,
any information provided to Trinidad police should be provided to counsel to determine if U.S.
police, had the search been conducted on U.S. soil, would have had the right to search the
property. In addition, U.S. agents could have acquired a warrant in the EDNY to search the
residence.7

Counsel here is not conceding that should the Court rule the arrest to have been made on probable cause, the items
seized are therefore legally admitted into evidence. Issues still remain as to whether a search warrant should have
been secured from either Trinidad or U.S. police to justify searching any bags. She awaits making further argument
from the Government, and will respond accordingly.
5
Although this is also listed as having been recovered in the 38 River Estate Road residence.
6
U.S. police obtained a search warrant to seize and search Mr. Kadirs hard drives. The same should have been done
before any search of the thumb drive occurred.
7
The Government cannot argue that securing such a warrant would be unenforceable in another country. If this were
the case, why did U.S. agents secure an arrest warrant, unenforceable in the same country.

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If the court finds that the search of the premises of Khalid Hassan of No. 38 River Estate
circular Road Diego Martin, was not based on probable cause, all of the items found inside
belonging to Mr. Kadir (see Ex. G) must be suppressed.
The Search of Mr. Kadirs home in Guyana
The search of Mr. Kadirs home appears to have been done pursuant to Guyanese search
warrants. (Ex. A, B) Counsel repeats her arguments from above. As in relation to all searches,
since all investigation was done on the behest of U.S. police, the court must know what
information was provided to foreign police to justify their search of the home.
Furthermore in this case, a second search of Mr. Kadirs home occurred on June 10,
2007, (Ex. B) some seven days after the first search. There was no additional information
provided that would have justified a second search or the further invasion of privacy caused to
Mr. Kadirs wife and family. (The home was left in a shambles, twice.)
The Search of Mr. Kadirs Hard Drives
The same arguments as above apply to this search. That is, if the initial searches or
searches of Kadirs home were illegal, then the drives should be suppressed. But even should the
court find the searches legal, counsel challenges the search warrant issued in relation to the hard
drives in that the scope of the search was unreasonable since no effort was made to limit the
search to files or materials only relating to potential terrorist activities. The authorization
presumed that information containing terrorist content would be found in the disks but failed to
delineate which files were appropriate to be searched. (Ex. D, AK 0340). As such the warrant
itself and the search were overly broad and should be suppressed.
Wherefore counsel requests the Court suppress all items belonging to defendant whether
seized from his person, residence, or baggage. Or in the alternative to compel the Government to

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provide documentation of the probable cause provided to foreign police justifying their stops and
searches or for hearings to determine the legality of such searches.

Respectfully submitted,

_____________________________ ,
KAFAHNI NKRUMAH Esq.
Counsel for Abdul Kadir

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INDEX OF EXHIBITS

A. Guyanese Search Warrant dated 6/3/07

B. Guyanese Search Warrant dated 6/10/07
C. List of what was recovered from Kadirs home in Guyana
D. Affidavit for search warrant to search Kadirs Hard Drives
E. Arrest Warrant for Kadir from Trinidad/Tobago dated 7/20/07
F. Complaint submitted to obtain Kadir arrest warrant, EDNY
G. Search Warrant from Trinidad authorizing search of Kahlid Hassan address.

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