Case 1:07-cr-00543-DLI Document 214 Filed 05/07/10 Page 1 of 6 PageID #: 1531

U.S. Department of Justice

United States Attorney

Eastern District of New York
MLM:ZA
F.#2006ROO688

271 Cadman Plaza East

Brooklyn, New York 11201

May 7, 2010
By ECF and Hand Delivery
The Honorable Dora L. Irizarry
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
Re:

United States v. Russell Defreitas, et al.,

Criminal Docket No. 07-543 (DLI)

Dear Judge Irizarry:

The government respectfully submits this letter in
response to defendant Kareem Ibrahims motion to renew his motion
to compel dated May 5, 2010, and to clarify certain factual
issues relating to its motion to admit other act evidence, filed
on May 3, 2010.
I.

Ibrahim Is Not Entitled to the Disclosure He Seeks

On March 22, 2010, defendant Kareem Ibrahim filed a

motion to compel the government to disclose classified United
States intelligence files pertaining to the threat posed by
Trinidadian terrorist group Jamaat Al-Muslimeen (JAM) and its
leader Yasin Abu Bakr to the United States and the 2009 Summit of
the Americas, and classified intelligence files relating to JAMs
criminal and witness tampering activity and connections to
Islamic militant organizations. The government responded to the
motion on April 2, 2010 in connection with its reply to the
defendants response to its motion to empanel an anonymous jury.
The Court has not yet ruled on Ibrahims motion. On May 5, 2010,
Ibrahim filed a motion to renew his motion to compel, arguing
that the governments recent disclosure that it intended to call
Calvin Bennett as an expert witness regarding JAM at trial newly
entitled him to the information he seeks. For the reasons stated
below, this argument is without merit.

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A.

Background

At trial, the government intends to introduce evidence

that the defendants sought to propose and/or sell their plot to
blow up John F. Kennedy International Airport (JFK Airport) to
JAM. As discussed on numerous recovered conversations between
the plotters, defendants Abdel Nur and Abdul Kadir both had
longstanding relationships with Yasin Abu Bakr and wished to
present their plan to attack JFK Airport to Abu Bakr and JAM.
Abdel Nur and Russell Defreitas traveled to Trinidad to present
the plan to Abu Bakr, and Nur reported to the plotters in a
recorded conversation that he had discussed the plan with Abu
Bakr, who had expressed interest in it, but was unwilling to
commit at that stage. Defendant Kareem Ibrahim urged Nur and
Defreitas not to deal with Abu Bakr, whom Ibrahim considered
untrustworthy. Ibrahim suggested that the plotters instead
present the plan to Iran and Iranian-backed groups, which they
eventually agreed was the best way to proceed.
B.

The Scope of the Proposed Expert Testimony

In light of the defendants stated intent to present

their plan to JAM and extensive efforts to carry out that intent,
the fact that JAM is a well-known terrorist organization in the
Caribbean will be a relevant issue at trial. Because the nature
and history of JAM are subjects beyond the ken of the average
juror, United States v. Amuso, 21 F.3d 1251, 1263 (2d Cir.
1994), the government respectfully submits that Mr. Bennetts
proposed testimony will assist the trier of fact to understand
the evidence or to determine a fact in issue, Fed. R. Evid. 702.
See, e.g., United States v. Locasio, 6 F.3d 924, 936 (2d Cir.
1993) (In determining whether [expert testimony] will assist the
jury, the district court must make a common sense inquiry into
whether the untrained layman would be qualified to determine
intelligently and to the best possible degree the particular
issue without enlightenment from those having a specialized
understanding of the subject involved in the dispute.) (internal
quotation marks omitted).
As described in the governments initial and
supplemental expert disclosure letters, dated April 19, 2010 and
May 6, 2010 and attached hereto as Exhibits A and B, the
government intends to elicit from Mr. Bennett general information
concerning JAMs history, reputation, and status as a significant
and violent Islamist terrorist organization based in Trinidad.
It is necessary for the jury to understand what type of
organization JAM is in order to appreciate the significance of
the defendants desire to involve JAM in their plot to blow up
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JFK Airport. The fact that the defendants intended to present

their plot to JAM, an organization well-known in the Caribbean
region for engaging in terrorist acts, is significant evidence of
their criminal intent to conspire to commit terrorist acts
against JFK Airport.
The government does not, however, intend to elicit
testimony on the question of whether or not Yasin Abu Bakr and
JAM would ultimately have been interested in, or capable of,
financing or otherwise supporting the defendants plan. Such
evidence is not relevant to the question of the defendants
guilt. As discussed in our response to Ibrahims motion to
compel, the defendants are guilty of the charged crimes if the
government proves beyond a reasonable doubt that, inter alia,
they acted with the intent to have their criminal plans succeed.
See, e.g., United States v. Zhou, 428 F.3d 361, 370 (2d Cir.
2005) (In order to convict a given defendant of conspiracy, the
government must prove that he knew of the conspiracy and joined
it . . . with the affirmative intent to make the conspiracy
succeed.). The strategic goals and operational capabilities of
JAM bear on this question of intent only to the extent that they
pertain to whether or not the defendants believed that their
connections within JAM would be interested in and able to carry
out their plan.
C.

The Classified Material Ibrahim Seeks is Not Material

to the Preparation of His Defense

As detailed in his memorandum dated March 22, 2010,

Ibrahim seeks from the government four broad categories of
classified intelligence materials from the files of at least 17
intelligence agencies. Def. Br. at 6-7, 11-12. The government
has searched intelligence files containing threat assessments
regarding the defendants plot, and those files contain neither
Brady material pertaining to JAM nor analyses of JAMs potential
strategic and/or operational interest in the defendants plot to
blow up JFK Airport. Any classified materials beyond those
pertaining to the defendants or the charged plot are not
discoverable pursuant to Rule 16.
As explained supra, the question of intent to be
presented to the jury at trial is whether or not the defendants
acted with the intent to have their criminal plan succeed. The
defendants perception of JAM as a violent terrorist group is a
relevant gauge of this intent, because the recorded conversations
that will be introduced at trial clearly demonstrate that the
defendants made significant efforts to present their plot to JAM.
While JAMs public reputation as a violent terrorist group may be
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relevant to the issue of how the defendants perceived JAM, there

is no basis to believe that the defendants relied on classified
United States intelligence information in forming their opinions
of JAMs goals and capabilities. Such classified intelligence
assessments are therefore irrelevant to the issues to be
determined at trial and cannot constitute documents that are
material to the defense under Rule 16(a)(1)(E)(i).1
Whether or not the United States intelligence community
believed outside of the context of the charged plot that JAM
was interested in or capable of attacking the United States is
not relevant to any defense the defendants could present at
trial. Even assuming arguendo that classified assessments exist
which might shed doubt on whether JAM would ultimately have been
interested in, or capable of, supporting the defendants plot to
attack JFK Airport, factual impossibility is no defense to a
conspiracy. See, e.g., United States v. Hendrickson, 26 F.3d
321, 327 (2d Cir. 1994); United States v. Clemente, 22 F.3d 477,
480-81 (2d Cir. 1994). [A] culpable conspiracy may exist even
though, because of the misapprehension of the conspirators as to
certain facts, the substantive crime which is the object of the
conspiracy may be impossible to commit. United States v. Rosa,
17, F.3d 1531, 1545 (quoting United States v. Waldron, 590 F.2d
33, 34 (1st Cir. 1979). In United States v. Hendrickson, the
Second Circuit emphasize[d] . . . that inability [to complete
the objects of a conspiracy] due to frustrated efforts, factual
impossibilities or unforeseen circumstances does not defeat the
inference of an agreement to achieve those objects. 26 F.3d at
337; see also United States v. Meyers, 529 F.2d 1033, 1037 (7th
Cir. 1976 ([T]he impossibility that the defendants conduct
would result in consummation of the contemplated substantive
crime is not persuasive or controlling.).
The recent case of United States v. Ivezaj, 569 F.3d 88
(2d Cir. 2009), is instructive here. In that case, the Second
Circuit held that the defendants were properly convicted of
conspiracy to extort even though the intended victim was not
actually the owner of the business they sought to extort. Id. at
95. The Court noted that the fact that [the victim] was not
actually the owner [did] not matter; rather, the key inquiry for
the jury . . . is whether the defendants thought he was. Id.

The government would also note that its proposed expert

has not viewed and will not be relying upon in his testimony any
of the classified information Ibrahim seeks. Therefore there can
be no claim that the information sought in any way forms the
bases of Mr. Bennetts opinions.
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(emphasis in original). The same reasoning applies here: whether

or not JAM was actually interested in, or capable of, carrying
out the defendants terror plot presents no defense to the
charged crimes. The only relevant question is whether the
defendants perceived JAM to be an organization that would have
been interested in furthering their terrorist conspiracy.
Therefore, classified assessments of JAMs capabilities and goals
are neither exculpatory under Brady, nor material to Ibrahims
preparation of his defense pursuant to Rule 16(a)(1)(E)(i).
For the foregoing reasons, defendant Ibrahims motion
to compel should be denied.
II.

Clarification of Other Act Evidence

The government further writes to clarify a factual

issue relating to its motion to admit other act evidence, filed
on May 3, 2010. With respect to Abdel Nur and his arrest in
Guyana in February 2007, the government intends to offer witness
testimony regarding the discussion of defendant Nurs arrest
among the plotters and its effect on the plots membership.
Recorded conversations between the plotters in the months
following the arrest refer generally to their concerns regarding
defendant Nur's reliability, character and status in the Muslim
community. For the reasons stated in our submission dated May
3rd, the government respectfully submits that the evidence of
Nurs arrest is admissible at trial.

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III.

Conclusion

For the foregoing reasons, the government respectfully

requests that the Court deny defendant Ibrahims motion to
compel, and admit evidence concerning the February 2007 arrest of
Abdel Nur at trial.

Respectfully submitted,
LORETTA E. LYNCH
UNITED STATES ATTORNEY
By:
Marshall L. Miller
Jason A. Jones
Berit W. Berger
Zainab Ahmad
Assistant U.S. Attorneys
(718)254-6421/7553/6134/6522

cc:

Mildred Whalen, Esq. (via ECF and email)

Len Kamdang, Esq. (via ECF and email
Daniel Nobel, Esq. (via ECF and email)
Doric Sam, Esq. (via ECF and email)
Michael Hueston, Esq. (via ECF and email)
Zoe Dolan, Esq. (via ECF and email
Kafahni Nkrumah, Esq. (via ECF and email)
Toni Messina, Esq. (via ECF and email)