Acquittal Motion Ghailani

Case 1:98-cr-01023-LAK Document 1071 Filed 12/17/10 Page 1 of 39
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------X
UNITED STATES OF AMERICA,
-v- 98 Cr. 1023 (S-10) (LAK)
AHMED KHALFAN GHAILANI,
Defendant.
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MEMORANDUM OF LAW IN SUPPORT OF

DEFENDANT AHMED KHALFAN GHAILANI’S
MOTIONS FOR A JUDGMENT OF ACQUITTAL PURSUANT TO
FED.R.CRIM.P. 29, OR, ALTERNATIVELY,
FOR A NEW TRIAL PURSUANT TO FED.R.CRIM.P. 33
MICHAEL K. BACHRACH, ESQ.

276 Fifth Avenue, Suite 501
New York, New York 10001
Tel: (212) 929-0592
Fax: (866) 328-1630
PETER ENRIQUE QUIJANO, ESQ.

Quijano & Ennis, P.C.
381 Park Avenue South, Suite 701
New York, New York 10016
Tel: (212) 686-0666
Fax: (212) 686-8690
Attorneys for Defendant

Ahmed Khalfan Ghailani
Table of Contents
Table of Authorities ........................................................................................ ii
I. Preliminary Statement .......................................................................... 1
II. Introduction .......................................................................................... 1
III. Pursuant to Rule 29(c) of the Federal Rules

of Criminal Procedure, Count 5 Should be
Dismissed Due to Insufficient Evidence .............................................. 2
A. For 284 Counts of Acquittal to Have Any Meaning

Count 5 Must be Dismissed ....................................................... 2
B. Regardless of Count 5, this Court Must Dismiss

Count 5B as a matter of Law.................................................... 12
IV. In the Alternative, a New Trial Should be

Ordered in the Interest of Justice Pursuant to
Rule 33 of the Federal Rules of Criminal Procedure ......................... 15
A. Since the Jury’s Finding on Count 5 cannot be

Reconciled with its Finding on All Other Counts,
a New Trial is Warranted in the Interests of Justice ................ 16
B. Permitting the Jury to Find Ghailani Guilty

on Count 5 Based Upon the Theory of
Conscious Avoidance was an Error that
can Only be Cured by a New Trial .......................................... 16
C. The Interests of Justice Require a New Trial

due to the Government’s Improper Summation....................... 26
V. Conclusion .......................................................................................... 32
i
Table of Authorities
FEDERAL CASES
Alberty v. United States,

162 U.S. 499 (1896) ............................................................................. 5
Darden v. Wainwright,
477 U.S. 168 (1986) ..................................................................... 27, 28
Donnelly v. DeChristoforo,
416 U.S. 637 (1974) ........................................................................... 28
Goldhirsh Group, Inc. v. Alpert,

107 F.3d 105 (2d Cir. 1997) ............................................................... 15
Hickory v. United States,

160 U.S. 408 (1895) ............................................................................. 5
Hicks v. United States,

150 U.S. 442 (1893) ............................................................................. 5
Napue v. Illinois,
360 U.S. 264 (1959) ........................................................................... 29
Starr v. United States,

164 U.S. 627 (1897) ............................................................................. 5
United States v. Aino-Marshall,

336 F.3d 167 (2d Cir. 2003) ............................................................... 22
United States v. Amuso,

21 F.3d 1251 (2d Cir. 1994) ................................................................. 5
United States v. Autuori,

212 F.3d 105 (2d Cir. 2000) ................................................................. 2
United States v. Ceballos,

340 F.3d 115 (2d Cir. 2003) ............................................................... 14
ii
United States v. Chen,

378 F.3d 151 (2d Cir. 2004) ................................................... 11, 13, 14
United States v. Civelli,

883 F.2d 191 (2d Cir. 1989) ............................................................... 22
United States ex rel. Darcy v. Handy,

351 U.S. 454 (1956) ........................................................................... 15
United States v. Elias,

285 F.3d 183 (2d Cir. 2003) ............................................................... 28
United States v. Ferguson,

246 F.3d 129 (2d Cir. 2001) ............................................................... 15
United States v. Ferrarini,

219 F.3d 145 (2d Cir. 2000) ............................................................... 22
United States v. Flaharty,

295 F.3d 182 (2d Cir. 2002) ............................................................... 29
United States v. Friedman,

300 F.3d 111 (2d Cir. 2002) ............................................................... 20
United States v. Gabriel,

125 F.3d 89 (2d Cir. 1997) ................................................................. 21
United States v. Gaviria,

740 F.2d 174 (2d Cir. 1984) ............................................................... 20
United States v. Glenn,

312 F.3d 58 (2d Cir. 2002) ................................................................. 25
United States v. Guadagna,

183 F.3d 122 (2d Cir. 1999) ................................................................. 2
United States v. Johnson,

513 F.2d 819 (2d Cir. 1978) ................................................................. 5
iii
United States v. Lewis,

797 F.2d 358 (7th Cir. 1986) .............................................................. 25
United States v. Lorenzo,

534 F.3d 153 (2d Cir. 2008) ............................................................... 20
United States v. Mariani,

725 F.2d 862 (2d Cir. 1984) ................................................................. 2
United States v. Morgan,

385 F.3d 196 (2d Cir. 2004) ............................................................... 20
United States v. Palmieri,

456 F.2d 9 (2d Cir. 1972) ................................................................... 10
United States v. Pitre,

960 F.2d 1112 (2d Cir. 1992) ............................................................. 21
United States v. Robinson,

430 F.3d 537 (2d Cir. 2005) ............................................................... 15
United States v. Rodriguez,

392 F.3d 539 (2d Cir. 2004) ......................................................... 20, 21
United States v. Rodriguez,

983 F.2d 455 (2d Cir. 1993) ................................................... 21, 22, 23
United States v. Salameh,

152 F.3d 88 (2d Cir. 1998) ................................................................. 25
United States v. Salerno,

937 F.3d 797 (2d Cir. 1991) ............................................................... 31
United States v. Samaria,

239 F.3d 228 (2d Cir. 2001) ............................................................... 21
United States v. Sanchez,

969 F.2d 1409 (2d Cir. 1992) ............................................................. 15
iv
United States v. Shareef,

190 F.3d 71 (2d Cir. 1999) ........................................................... 27, 28
United States v. Snype,

441 F.3d 119 (2d Cir. 2006) ............................................................... 15
United States v. Terry,

702 F.2d 299 (2d Cir. 1983) ................................................................. 4
United States v. Torres,

604 F.3d 58 (2d Cir. 2010) ............................................................. 6, 20
United States v. United States Gypsum Co.,

438 U.S. 422 (1978) ........................................................................... 29
United States v. Wilson,

610 F.3d 168 (2d Cir. 2010) ............................................................... 26
STATE CASES
State v. Anthony,
354 N.C. 372, 555 S.E.2d 557 (NC 2001) ......................................... 25
STATUTES AND OTHER AUTHORITIES
18 U.S.C. § 844 ................................................................................ 1, 3
Fed.R.Crim.P. 29 ................................................................. 1, 2, 10, 16,

32
Fed.R.Crim.P. 33 ................................................................. 1, 2, 15, 16,

32
Fed.R.Evid. 801 .................................................................................. 32
Mehler, Gleeson, James, Federal Criminal Practice:

A Second Circuit Handbook, § 31-7 (2010 Edition).......................... 22
Sand, Modern Federal Jury Instructions, Instr. 6-3.............................. 5
v
vi
I. Preliminary Statement
We respectfully submit this Memorandum of Law in support of
Defendant Ahmed Khalfan Ghailani’s Rule 29 motion for a judgment of
acquittal notwithstanding the jury verdict, or, in the alternative, Rule 33
motion for a new trial in the interest of justice. For the reasons that follow,
Ghailani submits that his conviction should be vacated and the charges either
dismissed or remanded for retrial.
II. Introduction
Ahmed Khalfan Ghailani was convicted of one count of Conspiracy
to Destroy United States Buildings and Property in violation of 18 U.S.C. §
844(n) (Count 5), but was acquitted of all other counts, including, four
additional counts of conspiracy alleging a conspiracy to kill United States
nationals, to murder, to use weapons of mass destruction, and to attack
national defense utilities, and 280 substantive counts charging, in various
forms, the bombing of the United States Embassies in Nairobi, Kenya, and
Dar es Salaam, Tanzania, as well as the murder of the 224 individuals who
died as a result of said bombings.
In light of the overwhelming statement of the jury acquitting Ghailani
on all but one count of conspiracy, as well as every single substantive count,
the question for this Court now is whether sufficient evidence remains to
1
have convicted Ghailani of the elements of Count 5 that would not be
inconsistent with the identical conduct to which he was acquitted on Counts
1, 3, 4, and 6 to 285. For the reasons that follow, we respectfully submit that
the answer is no, and that Ghailani’s conviction should be dismissed
pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure, or, in the
alternative, vacated and a new trial ordered pursuant to Rule 33 of the
Federal Rules of Criminal Procedure.
III. Pursuant to Rule 29(c) of the Federal Rules

of Criminal Procedure, Count 5 Should be
Dismissed Due to Insufficient Evidence
A. For 284 Counts of Acquittal to Have Any Meaning

Count 5 Must be Dismissed
The standard of proof to be applied to a Rule 29(c) motion is that
when viewing all inferences in the light most favorable to the government,
see United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000), “the Court
‘must determine whether upon the evidence, giving full play to the right of
the jury to determine credibility, weigh the evidence, and draw justifiable
inferences of fact, a reasonable mind might fairly conclude guilt beyond a
reasonable doubt.’ ” United States v. Guadagna, 183 F.3d 122, 129 (2d Cir.
1999), quoting United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984).
Count 5, the sole count of conviction, charged Ghailani with
Conspiracy to Destroy Buildings and Property of the United States in
2
violation of 18 U.S.C. § 844(n). Specifically, Count 5 alleged that Ghailani
and others “unlawfully, willfully and knowingly combined, conspired,
confederated and agreed unlawfully to maliciously damage and destroy, and
attempt to damage and destroy, by means of fire and explosives, buildings,
vehicles and other personal and real property in whole or in part owned and
possessed by, and leased to, the United States and departments and agencies
thereof, in violation of Title 18, United States Code, Section 844(f)(1).”
Redacted Indictment at ¶ 18.1
Count 5 further alleged that “[i]t was a part and an objective of said
conspiracy that the defendant and his co-conspirators would and did: (i)
bomb American facilities anywhere in the world, including the American
embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, (ii) attack
employees of the American Government stationed at those facilities,
including the American embassies in Nairobi, Kenya and Dar es Salaam,
Tanzania, and (iii) engage in conduct with the result of such conduct directly
and proximately causing the death of persons, in violation of Title 18,
United States Code, Section 844(f)(3).” Redacted Indictment at ¶ 19.
1
Citations to Defendant’s “Redacted Indictment” refer to the version of
Defendant’s Superseding Indictment that was provided by the Government to this Court,
and in turn provided to the jury, on November 10, 2010. A copy of Defendant’s
Redacted Indictment is annexed hereto as Defendant’s Exhibit A.
3
Taking all inferences in the light most favorable to the Government,
an argument can be made that the Government’s proof established that
Ghailani: (1) purchased the truck that was used to destroy the United States
embassy in Dar es Salaam, Tanzania; (2) purchased some of the gas
cylinders used to create the explosive device that destroyed the United States
embassy in Dar es Salaam, Tanzania; (3) was aware that a cell phone was
purchased by Rashid Saleh under Ghailani’s name, and that the cell phone
was used by one or more of Ghailani’s co-defendants; (4) knew and
associated with one or more of his co-defendants; (5) was present when one
or more overt acts charged in the Indictment occurred; and (6) flew to
Pakistan the day before the Embassy bombings occurred on a plane also
transporting one or more of his co-defendants. Nonetheless, we respectfully
submit that those isolated circumstantial facts standing alone, without proof
that Ghailani had the requisite knowledge and intent necessary to join the
conspiracy charged in Count 5, were insufficient to support a conviction on
that count.
As this Court charged the jury, it is impermissible to infer
participation in a conspiracy from mere association. See Jury Instructions at
7; accord Sand, Modern Federal Jury Instructions, Instr. 6-4, citing, inter
alia, United States v. Terry, 702 F.2d 299 (2d Cir. 1983); United States v.
4
Johnson, 513 F.2d 819 (2d Cir. 1978). Similarly it is also impermissible to
infer participation in a conspiracy from mere presence. See Jury Instructions
at 7; accord Sand, Modern Federal Jury Instructions, Instr. 6-3, citing, inter
alia, Hicks v. United States, 150 U.S. 442 (1893). Further, while “the flight
of a defendant after he knows he is to be accused of a crime may tend to
prove that the defendant believed that he was guilty … evidence of flight of
a defendant may not be used … as a substitute for proof of guilt. Flight does
not create a presumption of guilt.” Sand, Modern Federal Jury Instructions,
Instr. 6-9, citing, inter alia, Starr v. United States, 164 U.S. 627 (1897);
Alberty v. United States, 162 U.S. 499 (1896); Hickory v. United States, 160
U.S. 408 (1895); United States v. Amuso, 21 F.3d 1251 (2d Cir. 1994).
Here, no witness testified to any statements or actions made by
Ghailani that established direct proof of his involvement in the conspiracy
charged in Count 5. No evidence was introduced that established such direct
proof, and indeed no arguments were made by the Government alleging
Ghailani’s connection specifically to the elements of Count 5, as opposed to
general claims relevant to all counts of the Indictment (i.e., the allegations
rejected by the jury that Ghailani knowingly and intentionally participated in
the Embassy bombings). What was left was merely the connection of
distinct and isolated acts, which at best could make out a circumstantial case
5
reliant upon the theory of conscious avoidance. See United States v. Torres,
604 F.3d 58, 65-66 (2d Cir. 2010) (discussing requirements of conscious
avoidance in context of charges of conspiracy). Even that connection,
however, we respectfully submit was not established.
The Government’s case against Ghailani boiled down to three
principle themes: (1) Ghailani conspired to destroy the United States
embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya; (2) Ghailani
aided and abetted the bombings of the embassies; and (3) Ghailani’s conduct
was undertaken with the intent to kill all those individuals who died as a
result of the bombings. The jury’s verdict, however, clearly rejected all
three of these themes.
The jury, of course, is never required to take all evidence in the light
most favorable to the Government. Instead, the jury was correctly permitted
to interpose their own opinions as to whether the Government’s witnesses
were credible and worthy of belief, as well as whether sufficient evidence
existed to convict Ghailani beyond a reasonable doubt. See Jury Instructions
at 2, 64. Ghailani’s acquittal on all substantive counts, and all but one
conspiracy count, firmly establishes that the jury did not believe the
Government had proved its case.
6
So how then does one explain the sole count of conviction? And,
standing alone, did sufficient evidence exist to establish Ghailani’s guilt
beyond a reasonable doubt of whatever distinguished Count 5 from the
remainder of the indictment?
To answer these questions, it is necessary to compare the elements of
Count 5 to the elements of the counts of acquittal in order to ascertain what
distinguishes Count 5 from the required elements of the acquitted conduct.
As evinced by the following chart, it appears that the sole distinguishing
factor is that Count 5 permits a conviction for participation in a conspiracy
to destroy United States buildings and property “anywhere in the world”, not
simply the United States embassies in Nairobi, Kenya, and Dar es Salaam,
Tanzania. We respectfully submit that if such is the case, then there should
be no question that Count 5 must be dismissed as a matter of law since
absolutely no evidence was presented at trial that could establish Ghailani’s
participation in a conspiracy unrelated to the conspiracies to bomb the
United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania.
Count # Description Elements/Objects Verdict

(1) Murder U.S. nationals anywhere in the world;
(2) kill U.S. nationals employed at the U.S.
Embassies in Dar es Salaam, TZ, & Nairobi, KY;
(3) engage in conduct to conceal the activities
and means and methods of the conspirators by,
inter alia, establishing front companies, providing
false identity & travel documents, engaging in
coded correspondence, providing false
information to authorities in various countries &
1 Conspiracy to Kill U.S. Nationals seeking to detect & kill informants. Not Guilty
7
(1) Kill officers and employees of the U.S.; (2)

kill internationally protected persons; (3) engage
in conduct to conceal the activities and means
and methods of the conspirators by, among other
things, establishing front companies, providing
false identity and travel documents, engaging in
coded correspondence, providing false
information to authorities in various countries
3 Conspiracy to Murder and seeking to detect and kill informants. Not Guilty
(1) Bomb U.S. embassies in Nairobi, KY, and
Dar es Salaam, TZ, and the employees of the
U.S. Government stationed at those embassies (at
Conspiracy to Use Weapons of Mass ¶ 15); (2) "against property owned, leased, and
4 Destruction Against Nationals of the U.S. used by the U.S." (at ¶ 14). Not Guilty
(1) Bomb U.S. facilities anywhere in the world,
including the U.S. embassies in Nairobi, KY,
and Dar es Salaam, TZ; (2) attack employees
of the U.S. Government stationed at those
Conspiracy to Destroy Buildings and facilities; (3) engage in conduct that directly or
5 Property of the U.S. proximately causes death. Guilty
(1) Intentionally injure, interfere with and
obstruct the national defense of the U.S., (2)
combined, conspired, confederated and agreed
together and with each other to injure, destroy,
contaminate, and infect national-defense
Conspiracy to Attack National Defense material, national-defense premises and national
6 Utilities defense utilities of the U.S. Not Guilty
(1) Detonated an explosive device that damaged
and destroyed the U.S. embassy in Nairobi, KY;
Bombing of the U.S. Embassy in Nairobi, (2) directly or proximately caused the death of
7 Kenya 213 persons. Not Guilty
and destroyed the U.S. embassy in Dar es
Bombing of the U.S. Embassy in Dar es Salaam, TZ; (2) directly or proximately caused
8 Salaam, Tanzania the death of 11 persons. Not Guilty
Use of Weapons of Mass Destruction against (1) Attacked U.S. embassy in Nairobi, KY, with
9 Nationals of the U.S. in Nairobi, Kenya a bomb; (2) resulting in death. Not Guilty
Use of Weapons of Mass Destruction against
Nationals of the U.S. in Dar es Salaam, (1) Attacked U.S. embassy in Dar es Salaam, TZ,
10 Tanzania with a bomb; (2) resulting in death. Not Guilty
and destroyed the U.S. Embassy in Nairobi, KY;
(2) resulting in the direct and proximate cause of
the specific death of 213 individuals (each count
11-223 Murders in Nairobi, Kenya listing a separate individual). Not Guilty
and destroyed the U.S. Embassy in Dar es
Salaam, TZ; (2) resulting in the direct and
proximate cause of the specific death of 11
individuals (each count listing a separate
224-234 Murders in Dar es Salaam, Tanzania individual). Not Guilty
Murder of officers and employees of the U.S.
Gov’t and such persons assisting those officers
Murder of Employees of the U.S. in Nairobi, and employees in the performance of their duties
235-275 Kenya (each count listing a separate individual). Not Guilty
8
Attempted murder of officers and employees of

the U.S. Gov’t and such persons assisting those
Attempted Murder of Employees of the U.S. officers and employees in the performance of
276 in Nairobi, Kenya their duties. Not Guilty
Murder of officers and employees of the U.S.
Gov’t and such persons assisting those officers
Murder of Employees of the U.S. in Dar es and employees in the performance of their duties
277-278 Salaam, Tanzania (each count listing a separate individual). Not Guilty
Attempted murder of officers and employees of
the U.S. Gov’t and such persons assisting those
Attempted Murder of Employees of the U.S. officers and employees in the performance of
279 in Dar es Salaam, Tanzania their duties. Not Guilty
Murder of representatives, officers, employees
and agents of the U.S. Gov’t who at the time and
place concerned were entitled pursuant to
international law to special protection against
Murder of Internationally Protected Persons attack upon their persons, freedom, and dignity
280-281 in Nairobi, Kenya (each count listing a separate individual). Not Guilty
Attempted Murder of the Ambassador of the
United States to Kenya, and representatives,
officers, employees and agents of the U.S. Gov’t
who at the time and place concerned were
entitled pursuant to international law to special
Attempted Murder of Internationally protection against attack upon their persons,
282 Protected Persons in Nairobi, Kenya freedom, and dignity. Not Guilty
Attempted Murder of the Ambassador of the
United States to Tanzania, and representatives,
officers, employees and agents of the U.S. Gov’t
who at the time and place concerned were
entitled pursuant to international law to special
Attempted Murder of Internationally protection against attack upon their persons,
283 Protected Persons in Dar es Salaam, Tanzania freedom, and dignity. Not Guilty
Use and carrying of an bomb in connection with
the attacks on the U.S. embassies in Nairobi, KY,
Using and Carrying an Explosive During and Dar es Salaam, TZ (Only applicable had
284 Commission of a Felony there been a conviction on Count 1.) Not reached
Use and carrying of an explosive device during
Using and Carrying a Dangerous Devise and in relation to the bombing of the U.S.
During the Bombing of the U.S. Embassy in Embassy in Nairobi, KY (Only applicable had
285 Nairobi, Kenya there been a conviction on Count 7.) Not reached
Use and carrying of an explosive device during
Using and Carrying a Dangerous Devise and in relation to the bombing of the U.S.
During the Bombing of the U.S. Embassy in Embassy in Dar es Salaam, TZ (Only applicable
286 Dar es Salaam, Tanzania had there been a conviction on Count 8.) Not reached
A straightforward comparison of the counts charged against Ghailani
reveals that the only counts to charge Ghailani with conduct exclusive of the
embassy bombings were Counts 1, 3, 5, and 6. Further, the only counts –
9
substantive or inchoate – to charge conduct exclusive of murder, or
attempted murder, were Counts 4 and 5. Thus, by simple process of
elimination, the only count to charge conduct exclusive of the embassy
bombings and exclusive of murder, attempted murder, and conspiracy to
commit murder, was Count 5. However, there was no evidence that
Ghailani was a member of a conspiracy to destroy buildings and property
that did not include the United States embassies in Kenya and Tanzania, and
no evidence that he was even remotely aware of that specific objective – the
sole distinguishing element that sets Count 5 apart from the remainder of the
Indictment.
As a result, we respectfully submit that – as a matter of law – the sole
conviction on Count 5 cannot stand in light of the acquittal on all other
applicable counts of this 308-count indictment. Further, here the general
Rule 29 calculus is complicated by the fact that the jury convicted Ghailani
on one sole count of an extensive multi-count indictment charging Ghailani
with 285 counts of interrelated and overlapping conduct. In such cases, the
question becomes not simply whether the count can survive in complete and
total isolation, but whether the “necessary proof” of the acquitted conduct
“is identical [to] that required to convict” on the sole count of conviction.
United States v. Palmieri, 456 F.2d 9, 12 (2d Cir. 1972); see also United
10
States v. Chen, 378 F.3d 151, 164 (2d Cir. 2004). In the rare instances when
such is the case, dismissal is warranted.
As the Second Circuit explained, “we have recognized that as a matter
of law, ‘acquittal on a substantive charge does not prevent a conviction for a
conspiracy to commit the offense substantively charged unless the necessary
proof on the substantive charge is identical [to] that required to convict on
the conspiracy count.” Chen, 378 F.3d at 164 (emphasis added). Here, the
overt acts alleged in Count 5 were identical to those alleged in the other
conspiracy counts. See, e.g., Redacted Indictment at ¶ 20. Further, once the
identical proof of the other charges is eliminated, insufficient proof remains
regarding the sole distinguishing element of the sole count of conviction.
Specifically, to be found guilty of Count 5, the jury was required to
find that Ghailani had knowledge of at least one of the count’s unlawful
objectives, namely, that Ghailani knowingly and intentionally joined the
conspiracy to: (1) bomb United States facilities anywhere in the world,
including the United States embassies in Nairobi, Kenya, and Dar es Salaam,
Tanzania; and/or (2) attack employees of the United States government
stationed at those facilities, including the United States embassies in Nairobi
and Dar es Salaam.
11
The problem with sustaining Ghailani’s conviction on Count 5 is that
Ghailani was specifically acquitted of all of the substantive counts charging
his participation in the bombings of the United States facilities in Kenya and
Tanzania, as well as of all of the substantive counts charging the attack on
United States government employees stationed at those facilities. As a
result, the only possible way a conviction on Count 5 could stand is if the
jury concluded, beyond a reasonable doubt, that Ghailani entered into a
conspiracy to bomb United States facilities “anywhere in the world”, and/or
to attack the United States government employees stationed at those
facilities, exclusive of the embassy bombings in Kenya and Tanzania to
which Ghailani was acquitted. However, there simply was no proof – nor
even argument – linking Ghailani to conduct exclusive of the embassy
bombings.
B. Regardless of Count 5, this Court Must Dismiss

Count 5B as a matter of Law
Indeed, the inconsistency discussed above is particularly problematic
when examining the jury’s finding with respect to Count 5B. To put it
simply, how could Ghailani be directly or proximately responsible for the
deaths of individuals to which there has either been no proof whatsoever
(i.e., bombings exclusive of the embassies) or to which Ghailani was fully
acquitted? To answer it just as simply, as a matter of law, he can’t.
12
Irrespective of this Court’s conclusion regarding the validity of
Ghailani’s conviction on Count 5, we respectfully submit that the jury’s
findings with respect to Count 5B must be rejected pursuant to United States
v. Chen, supra, 378 F.3d 151, 164 (2d Cir. 2004), as a result of the complete
acquittal on all substantive counts charging Ghailani’s involvement both in
the bombings and in the deaths that resulted. Most notably, the jury’s
acquittal of Ghailani on Counts 7 and 8 simply cannot be reconciled with the
jury’s finding on Count 5B.
Count 5B asked the jury to determine whether the Government had
“proved that the defendant’s conduct in Count 5 [i.e., his involvement in the
conspiracy to destroy United States buildings and property] directly or
proximately caused death to a person other than a co-conspirator?” See
Verdict Sheet at 1. Seeing as there was absolutely no evidence presented at
trial that Ghailani’s conduct – be it substantive or inchoate – led to any
deaths whatsoever besides those individuals that perished in the embassy
bombings, the jury’s finding on Count 5B could only have been referring to
the deaths that resulted during the embassy bombings. As a result, the jury’s
finding on Count 5B that Ghailani was directly or proximately responsible
for the deaths that occurred as a result of the conspiracy to bomb the United
States embassies, must be compared to the jury’s finding on Counts 7 and 8
13
that Ghailani was not guilty of being the direct or proximate cause of those
exact same deaths.
Specifically, Counts 7 and 8 asked the jury to determine whether
Ghailani was guilty of the substantive offense of bombing the United States
embassies in Kenya and Tanzania. Both counts also required a finding that
Ghailani directly or proximately caused the death of the 224 individuals that
were killed. The jury found, however, that Ghailani was not guilty of such
conduct. As such, in the case of Counts 5B, 7, and 8, the “necessary proof
on the substantive charge [Counts 7 and 8] [was] identical [to] that required
to convict on the conspiracy count [Count 5B],” Chen, 378 F.3d at 164,
namely that Ghailani’s specific conduct resulted in the direct or proximate
cause of the death of those individuals that perished during the embassy
bombings.
Therefore, while we strongly believe that Count 5 must be dismissed
as a matter of law, irrespective of this Court’s determination on Count 5, we
respectfully submit that Count 5B must independently be dismissed as a
matter of law as well. See Chen, 378 F.3d at 164; see also United States v.
Ceballos, 340 F.3d 115, 125 (2d Cir. 2003) (“[t]he jury’s role as the finder of
fact does not entitle it to return a verdict based only on confusion[ or]
speculation ...; its verdict must be reasonably based on evidence presented at
14
trial”), quoting, Goldhirsh Group, Inc. v. Alpert, 107 F.3d 105, 108 (2d Cir.
1997).
IV. In the Alternative, a New Trial Should be

Ordered in the Interest of Justice Pursuant to
Rule 33 of the Federal Rules of Criminal Procedure
Under Rule 33 of the Federal Rules of Criminal Procedure, this Court
may “vacate any judgment and grant a new trial if the interest of justice so
requires.” Fed.R.Crim.P. 33(a). Although the burden of showing “essential
unfairness” is on the defendant, United States ex rel. Darcy v. Handy, 351
U.S. 454, 462 (1956) (citations omitted), the Court “must strike a balance
between weighing the evidence and credibility of witnesses and not wholly
usurp[ing] the role of the jury.” United States v. Ferguson, 246 F.3d 129,
133 (2d Cir. 2001). As a result, “[t]he ultimate test on a Rule 33 motion is
whether letting a guilty verdict stand would be a manifest injustice.”
Ferguson, 246 F.3d at 134 (citation omitted); see United States v. Snype,
441 F.3d 119, 140 (2d Cir. 2006). Similarly, the rule itself gives this Court
“broad discretion to set aside a jury verdict and order a new trial to avert a
perceived miscarriage of justice.” United States v. Sanchez, 969 F.2d 1409,
1413 (2d Cir. 1992); see United States v. Robinson, 430 F.3d 537, 543 (2d
Cir. 2005).
15
Here, we respectfully submit that there are three bases upon which to
grant a new trial. First, the irreconcilability between the sole count of
conviction and Ghailani’s acquittal on all other counts of the Indictment,
which, without dispute, all arose out of the exact same conduct and
evidence. A new trial is also warranted based upon this Court’s inclusion of
a conscious avoidance charge over the objections of defense counsel, see Tr.
2060, 2611-2613, as well as due to the Government’s improper summation,
see Tr. 2398.
A. Since the Jury’s Finding on Count 5 cannot be Reconciled

with its Finding on All Other Counts, a New Trial is
Warranted in the Interests of Justice
The first basis for a new trial has already been discussed in the context
of Rule 29(c), so for sake of brevity we hereby incorporate those arguments
into Defendant’s Rule 33 motion and simply request a new trial in the
interests of justice on this first ground only if this Court is not convinced that
the more severe remedy of a Rule 29(c) dismissal has not been met.
B. Permitting the Jury to Find Ghailani Guilty on Count 5

Based Upon the Theory of Conscious Avoidance was an
Error that can Only be Cured by a New Trial
Turning to the second basis for a new trial, this Court’s decision to
instruct the jury on the theory of conscious avoidance, we first note that we
are not objecting to the specific language used by this Court to explain the
16
term. To the contrary, we believe this Court’s supplemental instruction on
conscious avoidance was an accurate statement of the law. See also Tr.
2636 (Government agreeing that this Court’s supplemental instruction was
legally sufficient: “Supplemental instruction, there is certainly nothing
legally wrong with that.”)
Our present objection pertains to this Court’s decision to instruct the
jury on the theory itself – regardless the specific language – in this case, and
this Court’s refusal to correct such decision when later given the opportunity
to do so.
During the charge conference defense counsel specifically objected to
charging the jury on the theory of conscious avoidance.
MR. BACHRACH: Your Honor, the defense does

not believe conscious avoidance is appropriate in
this particular case. There has been no evidence
akin to a conscious avoidance. Generally a
conscious avoidance would be used if, for
example, we had a narcotics conspiracy, let’s say a
pharmacy conspiracy where pharmacists are filling
false prescriptions and doing so where anyone
would know that these were false prescriptions and
they were turning their heads and continuing to fill
them and diverting loads and loads of narcotics to
the streets in that manner.
Obviously, that would be a time when they could

be held accountable for looking the other than
way. We don’t believe the evidence here is
sufficient for such a charge.
17
(Tr. 2060.) This Court overruled Defendant’s objection (Tr. 2062), but the
issue of whether or not to charge the jury with this theory came up again
during jury deliberations as a result of a jury note seeking clarification of the
term (see Ct. Exhibit AC).
Specifically, the jury’s note asked:
On page 9, lines 8 through 10, our instructions say

“conscious avoidance cannot be used as a
substitute for finding that the defendant knowingly
joined the conspiracy, that is that the defendant
knew that he was becoming a party to an
agreement to accomplish an alleged illegal
purpose.” Does this alleged illegal purpose have
to be the illegal objective defined in each specific
conspiracy count or simply be some illegal
purpose?
(Ct. Exhibit AC.)
This jury’s question was quite apt, and by no means easy to
immediately answer, however, after reflection the defense did once again
come to the conclusion that the concept of conscious avoidance should not
be applied to this case.
MR. ZISSOU: I’m asked by my colleagues just to

add one more thing. Again, I know you don’t like
going back to the well too often or more than once,
that is, but our position is that in a multiple
conspiracy case, we do not think the charge should
apply in any event….
All I’m suggesting to you, if it … turns out that in

retrospect or in light of a new day that we were
18
correct that the conspiracy – that the conscious

avoidance charge should not have been given,
there is no reason to leave this jury with this
impression. They’re still here. We can still
correct it. It could be still be done properly.
(Tr. 2611-13.) This Court acknowledged, “It is a sufficiently important
point that I’m not going to answer without thinking about it some more,” but
then in the meantime “invite[d] both sides to submit a proposed
supplemental charge” (Tr. 2613), which of course both parties did without
hesitation to comply with this Court’s request. Ultimately, however, this
Court determined that it would not instruct the jury to discard the prior
instruction on conscious avoidance, and instead endeavored to clarify the
meaning of the term.
Again, while we still believe that this Court was completely accurate
in the content of its supplemental charge, we also still maintain that the
correct course would have been to have never instructed the jury on the
theory of conscious avoidance to begin with, and then to tell the jury to
disregard the instruction when the opportunity later arose to do so during the
jury’s deliberations. While certain bells cannot be unrung, we respectfully
submit that this is one that could have been quite easily.
As the Second Circuit recently explained, conscious avoidance allows
a jury to find guilt based upon circumstantial proof of knowledge, provided
19
there exists “at least the degree of criminal intent necessary for the
substantive offense itself.” United States v. Torres, supra, 604 F.3d 58, 65
(2d Cir. 2010). “Proof that the defendant engaged in suspicious behavior,
without proof that he had knowledge that his conduct involved [an unlawful
objective], is not enough to support his conviction for conspiracy to [commit
the unlawful objective].” Torres, 604 F.3d at 66, citing, United States v.
Lorenzo, 534 F.3d 153, 160-62 (2d Cir. 2008).
“To sustain a conspiracy conviction, the government must present
some evidence from which it can reasonably be inferred that the person
charged with conspiracy knew of the existence of the scheme alleged in the
indictment and knowingly joined and participated in it.” United States v.
Rodriguez, 392 F.3d 539, 545 (2d Cir. 2004) (internal quotation marks
omitted), quoting, United States v. Morgan, 385 F.3d 196, 206 (2d Cir.
2004); United States v. Gaviria, 740 F.2d 174, 183 (2d Cir. 1984). “Proof
that the defendant knew that some crime would be committed is not
enough.” Rodriguez, 392 F.3d at 545, quoting, United States v. Friedman,
300 F.3d 111, 124 (2d Cir. 2002) (emphasis in original).
Since the inchoate and substantives charges were all specific intent
crimes, the Government was required “to establish that [Ghailani]
knowingly and intentionally participated in the [specific charged crimes]
20
involving [his alleged co-conspirators]”. Rodriguez, 392 F.3d at 545, citing,
Morgan, 385 F.3d at 206; United States v. Samaria, 239 F.3d 228, 231 (2d
Cir. 2001); United States v. Pitre, 960 F.2d 1112, 1121 (2d Cir. 1992). The
question before this Court now, is whether the facts of this case warranted an
instruction on conscious avoidance at all.
The Second Circuit has consistently held that a conscious avoidance
instruction is warranted “when a defendant claims to lack some specific
aspect of knowledge necessary to conviction but where the evidence may be
construed as deliberate ignorance.” United States v. Gabriel, 125 F.3d 89,
98 (2d Cir. 1997). At first blush, that description then might seem quite
appropriate to Ghailani’s case, however, we respectfully submit that upon
further consideration it should not.
A conscious avoidance instruction is warranted if the defendant’s
knowledge and intent are in dispute and the evidence presented at trial
would allow a reasonable juror to conclude that the defendant “was aware of
a high probability of the fact in dispute and consciously avoided confirming
that fact.” United States v. Rodriguez, 983 F.2d 455, 458 (2d Cir. 1993).
Building upon both of these elements, treatises addressing the subject
explain that the Government’s evidence “must include proof of red flags,
that is, facts that placed the defendant on notice of a ‘high probability’ that,
21
for example, he possessed contraband.” Mehler, Gleeson, James, Federal
Criminal Practice: A Second Circuit Handbook, § 31-7 at 621 (2010
Edition).
In United States v. Aino-Marshall, 336 F.3d 167, 170 (2d Cir. 2003),
the Second Circuit explained:
[A] conscious avoidance instruction may be given

only (i) when a defendant asserts the lack of some
specific aspect of knowledge required for
conviction, United States v. Civelli, 883 F.2d 191,
194 (2d Cir. 1989), and (ii) the appropriate factual
predicate for the charge exists, i.e., the evidence is
such that a rational juror may reach the conclusion
“beyond a reasonable doubt that the defendant was
aware of a high probability of the fact in dispute
and consciously avoided confirming that fact,”
United States v. Rodriguez, [supra,] 983 F.2d 455,
458 (2d Cir. 1993). See also [United States v.]
Ferrarini, 219 F.3d [145,] 154 [2d Cir. 2000] (“A
conscious avoidance instruction permits a jury to
find that a defendant had culpable knowledge of a
fact when the evidence shows that the defendant
intentionally avoided confirming the fact.”).
However, as the Second Circuit further explained, “a court may not
give a conscious avoidance charge if the evidence does not support it,” Aina-
Marshall, 336 F.3d at 171, and “a conscious avoidance instruction should be
issued only where it can be shown that the defendant ‘decided not to learn
the key fact, not merely ... failed to learn it through negligence,’ ” Aina-
22
Marshall, 336 F.3d at 171 (underlining added), quoting, Rodriguez, 983 F.2d
at 458 (italics in original).
Indeed, in the context of the Ghailani trial, we respectfully submit that
use of the conscious avoidance instruction created a presumption that the
defense should never have been required to overcome, thereby allowing the
Government to establish Ghailani’s membership in the conspiracy even
though it could not otherwise prove every element of the offense. If that
were to be generally permitted, then the Government could rely upon the
theory of conscious avoidance in any case where the evidence does not
prove beyond a reasonable doubt that a defendant knowingly joined a
conspiracy. Among other illogical results, the giving of such a charge, in the
absence of any evidence or “red flags” to support it, virtually demands that
the accused take the stand in his or her own defense to rebut this judicially
created presumption – the presumption of innocence thus yielding to the
presumption of conscious avoidance.
To put it another way, think of a simple employee, ABLE, of a
company engaged in price fixing that is owned by BAKER. The employee,
ABLE, goes to work everyday and types up the price list, buys the office
supplies, and organizes meetings that are hosted by BAKER and attended by
the other price fixers. After those meetings ABLE drinks orange soda from
23
a Fanta soda bottle while he cleans up and BAKER puts ABLE’S name on
some of the invoices. One of the invoices finds its way to ABLE and he
picks it up and reads it but since there is nothing nefarious about it, he thinks
nothing of it.
BAKER finds out about an FBI investigation and flees to Pakistan
taking ABLE with him because he needs somebody to cook for him. ABLE
eventually is charged with aiding and abetting the price fixing conspiracy
and at his trial his lawyers advance the stupidity defense. There is not a
shred of additional evidence that he consciously avoided learning about the
objectives of the conspiracy or that he in any way shared in any of them.
Under those facts, if one were to permit the Government to rely on
conscious avoidance to establish ABLE’s membership in the conspiracy,
wouldn’t that render meaningless the concept of requiring the Government
to prove each and every element beyond a reasonable doubt? We
respectfully submit the answer is the same for Ghailani as it would be for
ABLE. If not, then the Government would be permitted to shift the burden
of proof in such a manner that would infringe upon the defendant’s
presumption of innocence.
To put it another way, had the embassies never been bombed, there
would have been no basis to conclude that Ghailani did anything that had an
24
illegal purpose. He bought a truck. There was a cell phone in his name. He
was present and associated with his co-defendants. Again, if the embassies
had not been attacked, what circumstances surrounding Ghailani’s conduct
would have evinced an intent to commit the specific crime of conspiracy to
bomb United States property? Absent the bombings, no one would have
ever suspected illegal conduct was afoot, so what evidence was there prior to
the bombings to suggest that Ghailani consciously avoided learning the
specific objectives of the conspiracy? We respectfully submit that for
conscious avoidance to have been applicable to this case, then the evidence
to support it must have taken place at the time of Ghailani’s specific overt
acts, all of which occurred prior to the bombings.
Moreover, while the evidence of Ghailani’s flight could have been
used to establish his consciousness of guilt, evidence of flight does not go to
show conscious avoidance but rather specific knowledge. See United States
v. Salameh, 152 F.3d 88, 157 (2d Cir. 1998) (per curiam); United States v.
Glenn, 312 F.3d 58, 68 (2d Cir. 2002); United States v. Lewis, 797 F.2d 358,
368 (7th Cir. 1986); see also State v. Anthony, 354 N.C. 372, 426, 555
S.E.2d 557, 591 (NC 2001) (proof of flight alone in a murder prosecution
will not be considered as evidence of premeditation and deliberation).
Obviously, if someone is getting on a plane to flee arrest, he is doing so
25
because he knows he is in danger of arrest; therefore he cannot be someone
who has consciously avoided ever gaining that specific knowledge. As such,
we respectfully submit that it was error to permit the jury to find Ghailani
guilty of Count 5 based upon the theory of conscious avoidance. We further
submit that Count 5 must therefore be vacated and a new trial ordered in the
interests of justice to correct this structural flaw in the proceedings.
C. The Interests of Justice Require a New Trial

due to the Government’s Improper Summation
Turning to the third and final basis for a new trial, the Government’s
improper summation, we need not look long to find recent reversals on such
grounds. See, e.g., United States v. Wilson, 610 F.3d 168 (2d Cir. 2010)
(reversing sentence of death as a result of improper Government
summation). Here, the Government’s rebuttal summation focused primarily
on an attempt to discredit Ghailani’s “dupe” defense. However, at the end of
the Government’s rebuttal summation, the Government’s argument crossed
the line between fair argument and foul play, culminating in claims that were
completely inappropriate and directly contrary to arguments the Government
made pretrial. As will be discussed below, we respectfully submit that the
Government’s final argument on the “dupe” defense went beyond what is
fair argument based upon the record, and as such requires a new trial to
26
remedy the prejudice. See United States v. Shareef, 190 F.3d 71, 78 (2d Cir.
1999), citing, inter alia, Darden v. Wainwright, 477 U.S. 168, 181 (1986).
During the Government’s rebuttal summation, the term “dupe” was
repeated approximately 41 times, and the “dupe” defense attacked by the
Government numerous times in various different manners, nearly all of
which we concede were fair argument. See, e.g., Tr. 2357, 2358, 2360,
2371, 2376, 2377, 2378, 2379, 2380, 2381, 2382, 2394, 2395, 2396, 2398,
2399, 2400, 2401, 2402, 2412, 2419, 2420. However, the one argument that
crossed the line came at the end of the Government’s rebuttal summation
and was glaring:
There are hundreds and hundreds of names in this

indictment. Hundreds. And the thing to know
about killing on this scale is that killing on this
scale is horribl[e], it’s planned and it’s precise, and
it’s terribly sophisticated. And in the course of an
operation like that that cost us many lives, there is
no room for some dupe just to get led into the heart
of it. No room for a dupe because he might get
cold feet. And there’s no room for a dupe because
he might talk to his friends. And there’s no room
for a dupe because he might call the cops. And the
other thing about killing on this scale is there’s no
room for a dupe because when it’s done the costs
are so high and so gruesome and so apocalyptic
that anyone with a conscience, no dupe stays
silent in the face of being involved in this kind
of thing. That’s why there are no dupes in this.
(Tr. 2419 [emphasis added].)
27
The Second Circuit has consistently held that to warrant reversal
based upon improper comment during summation, or in this case, rebuttal
summation, the remarks must cause the defendant “substantial prejudice” by
“ ‘so infecting the trial with unfairness as to make the resulting conviction a
denial of due process.’ ” See United States v. Shareef, supra, 190 F.3d 71,
78 (2d Cir. 1999), quoting, Darden v. Wainwright, supra, 477 U.S. 168, 181
(1986). As such, “Remarks of the prosecutor in summation do not amount
to a denial of due process unless they constitute ‘egregious misconduct.’ ”
Shareef, 190 F.3d at 78, quoting, Donnelly v. DeChristoforo, 416 U.S. 637,
647 (1974).
As explained in United States v. Elias, 285 F.3d 183, 190 (2d Cir.
2003), citing, Shareef, 190 F.3d at 78, “In assessing whether prosecutorial
misconduct caused ‘substantial prejudice,’ [the Second Circuit] has adopted
a three-part test: [1] the severity of the misconduct, [2] the measures adopted
to cure the misconduct, and [3] the certainty of conviction absent the
misconduct.”
Obviously, we are not arguing that the Government’s improper
summation was akin to a Brady violation, destruction of evidence, or any
other conduct of such nefarious nature. However, we do submit that the
Government’s remarks were akin to a Napue violation, and as such amount
28
to a denial of Ghailani’s Due Process rights when viewed in the specific
context of this case. See Napue v. Illinois, 360 U.S. 264, 269, 1177 (1959)
(“a conviction obtained through use of false evidence, known to be such by
representatives of the State, must fall under the Fourteenth Amendment …
[t]he same result obtains when the State, although not soliciting false
evidence, allows it to go uncorrected when it appears”).
There are two reasons why the Government’s argument so offend
defense counsel: First, Ghailani’s defense was not based upon withdrawal,
so an argument claiming that Ghailani should be found guilty because he did
not break away from his alleged co-conspirators and immediately report to
the police, placed a burden upon the defendant which the defense did not
affirmatively create. Cf. United States v. Flaharty, 295 F.3d 182, 192 (2d
Cir. 2002) (when the affirmative defense of withdrawal is raised in a
conspiracy case, the defendant has the burden of showing that he performed
affirmative acts that were “inconsistent with the object of the conspiracy and
communicated in a manner reasonably calculated to reach co-conspirators”,
quoting, United States v. United States Gypsum Co., 438 U.S. 422, 464
[1978]).
The defense was that Ghailani was a dupe. That he was used and
taken advantage of and lacked the necessary knowledge or intent to join the
29
conspiracy. Even if the jury had found that Ghailani had some knowledge of
what was about to occur – a conclusion that is refuted by his acquittal on
every count that required specific intent to kill or specific intent to destroy
the United States embassies in Kenya and Tanzania – the argument that no
one who was duped would remain silent and fail to immediately go to the
police, was blatantly misleading, and not something that the Government
should have been permitted to comment upon absent the affirmative defense
of withdrawal.
Second, regardless whether the Government’s comment would have
been ordinarily acceptable even absent a withdrawal defense, the comment
was particularly inappropriate in this case since the Government was well
aware that there were in fact many similar dupes that – unbeknownst to the
jury – figured out after the fact what had occurred but did not then
immediately report to the police. The most glaring example of this was
Hussein Abebe, a witness the Government relied upon pretrial as being an
innocent man who had been taken advantage of. See, e.g., Transcript of Pre-
Trial Hearing, dated, September 15, 2010, at 349-50, 352. Abebe, of course,
was also an individual that the Government was aware had spent eight years
in hiding doing everything to avoid coming forward to speak to the police
while being fully aware that he had information that would be relevant to the
30
investigation into the embassy bombings. See, e.g., Post-Hearing
Memorandum of Law in Support of Defendant Ahmed Khalfan Ghailani’s
Motion to Preclude the Testimony of Hussein Abebe, dated, September 29,
2010, at 8-9, 26-28 (discussing Abebe’s failure to voluntarily approach the
police with the information he had relevant to the embassy bombings).
Thus, based upon the Government’s pretrial claim that Abebe was,
essentially, a dupe, coupled with its knowledge that Abebe willfully and
intentionally avoided reporting information to the police for approximately
eight years, the Government should not have been permitted to argue at trial
that “no dupe stays silent in the face of being involved in this kind of thing”
(Tr. 2419). Instead, the Government’s rebuttal summation essentially
attempted to take the Abebe preclusion order and turn it on its head,
capitalizing with disingenuous arguments that it could never have made had
Abebe testified at trial – this should not be permitted to stand. The
Government should not be permitted to make statements during rebuttal
summation that are directly opposed to what it claimed to be the truth just
weeks earlier, particularly since the defendant’s case had rested and his
summation complete. Cf. United States v. Salerno, 937 F.3d 797, 811 (2d
Cir. 1991) (the defense may introduce into evidence the Government’s
31
opening and closing arguments from an earlier related case as an admission
of a party-opponent against the Government under Fed.R.Evid. 801[d][2]).
For those reasons, Ghailani respectfully submits that a new trial is
warranted in the interest of justice to correct the manifest injustice that
occurred in his trial.
V. Conclusion
Wherefore, Defendant Ahmed Khalfan Ghailani respectfully requests
that the jury verdict as to Count 5 and Count 5B be vacated and the charges
dismissed pursuant to Rule 29(c), or, in the alternative, that his conviction be
vacated and remanded for retrial pursuant to Rule 33.
Dated: New York, New York

December 16, 2010
Respectfully submitted,
Michael K. Bachrach
Attorney for Defendant

Ahmed Khalfan Ghailani
– On the brief –
Michael K. Bachrach
Steve Zissou
32

Acquittal Motion Ghailani

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Case 1:98-cr-01023-LAK Document 1071 Filed 12/17/10 Page 1 of 39

UNITED STATES DISTRICT COURT

-v- 98 Cr. 1023 (S-10) (LAK)

AHMED KHALFAN GHAILANI,

MEMORANDUM OF LAW IN SUPPORT OF

MICHAEL K. BACHRACH, ESQ.

PETER ENRIQUE QUIJANO, ESQ.

Attorneys for Defendant

Table of Authorities ........................................................................................ ii

I. Preliminary Statement .......................................................................... 1

II. Introduction .......................................................................................... 1

III. Pursuant to Rule 29(c) of the Federal Rules

A. For 284 Counts of Acquittal to Have Any Meaning

B. Regardless of Count 5, this Court Must Dismiss

IV. In the Alternative, a New Trial Should be

A. Since the Jury’s Finding on Count 5 cannot be

B. Permitting the Jury to Find Ghailani Guilty

C. The Interests of Justice Require a New Trial

Alberty v. United States,

Goldhirsh Group, Inc. v. Alpert,

Hickory v. United States,

Hicks v. United States,

Starr v. United States,

United States v. Aino-Marshall,

United States v. Amuso,

United States v. Autuori,

United States v. Ceballos,

United States v. Chen,

United States v. Civelli,

United States ex rel. Darcy v. Handy,

United States v. Elias,

United States v. Ferguson,

United States v. Ferrarini,

United States v. Flaharty,

United States v. Friedman,

United States v. Gabriel,

United States v. Gaviria,

United States v. Glenn,

United States v. Guadagna,

United States v. Johnson,

United States v. Lewis,

United States v. Lorenzo,

United States v. Mariani,

United States v. Morgan,

United States v. Palmieri,

United States v. Pitre,

United States v. Robinson,

United States v. Rodriguez,

United States v. Rodriguez,

United States v. Salameh,

United States v. Salerno,

United States v. Samaria,

United States v. Sanchez,

United States v. Shareef,

United States v. Snype,

United States v. Terry,

United States v. Torres,

United States v. United States Gypsum Co.,

United States v. Wilson,

STATUTES AND OTHER AUTHORITIES