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United States v. Mostafa

United States District Court for the Southern District of New York

April 12, 2014, Decided; April 12, 2014, Filed

04 Cr. 356 (KBF)

Opinion

 [*517]  OPINION & ORDER

KATHERINE B. FORREST, District Judge:

Defendant Mostafa Kamel Mostafa was indicted in 2004 for, inter alia, conspiracy to take hostages, hostage taking, conspiracy to provide and conceal material support and resources to terrorists (the Bly, Oregon jihad training camp), providing and concealing material  [**2] support to terrorists (the Bly, Oregon jihad training camp), conspiracy to provide material support and resources to a foreign terrorist organization (the Bly, Oregon jihad training camp), providing material support and resources to a foreign terrorist organization (the Bly, Oregon jihad training camp), conspiracy to provide and conceal material support and resources to terrorists (facilitating violent jihad in Afghanistan), providing and concealing material support to terrorists (facilitating violent jihad in Afghanistan), conspiracy to provide material support and resources to a foreign terrorist organization (facilitating violent jihad in Afghanistan), providing material support and resources to a foreign terrorist organization (facilitating violent jihad in Afghanistan), and conspiracy to provide goods and services to the Taliban in violation of the International Emergency Economic Powers Act. (ECF No. 1.) Trial is scheduled to commence on April 14, 2014.

One of the witnesses whom the Government intends to call, Saajid Badat, has refused to come to the United States to testify. (ECF No. 291.) He has agreed, however, to provide testimony under oath by live closed-circuit television  [**3] ("CCTV").

The Government has moved pursuant to Federal Rules of Criminal Procedure 2 and 15 for an order allowing Badat to  [*518]  testify by live CCTV or by deposition. (ECF No. 238.) The Government contends that Badat is unavailable to testify in person and that his testimony is material. Defendant has opposed the motion, primarily on the basis that the Government has been complicit in maintaining such unavailability.1 (See, e.g., Mem. of L. in Opp. to Gov't's Mot. ("Def.'s Opp."), ECF No. 245.)

The Court has thoroughly explored the issue of unavailability and whether circumstances here justify allowing Badat to testify by live CCTV. The Court has held at the forefront of its analysis the defendant's Sixth Amendment right to confront witnesses against him. The Court has carefully considered defendant's arguments regarding the Government's complicity and/or good faith. Based on what has been an elaborate process relating to this issue,  [**4] the Court grants the Government's motion. Badat will be allowed to testify by live CCTV from the United Kingdom. Defense counsel may be present in person to cross-examine him; the jury shall watch Badat's direct testimony and cross-examination by live CCTV from the courtroom.

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14 F. Supp. 3d 515 *; 2014 U.S. Dist. LEXIS 51440 **; 2014 WL 1467830

UNITED STATES OF AMERICA -v- MOSTAFA KAMEL MOSTAFA a/k/a "Abu Hamza al-Masri," Defendant.

Prior History: United States v. Mostafa Kamel Mostafa, 965 F. Supp. 2d 451, 2013 U.S. Dist. LEXIS 126928 (S.D.N.Y., 2013)

CORE TERMS

unavailability, deposition, jihad, witness testimony, terrorist, witnesses, confrontation, conspiracy, travel, resources, cooperation agreement, cross-examination, facilitating, reliability, violent, exceptional circumstances, right to confront, training camp, Sixth Amendment, authorities, good-faith, testifying, courtroom, questions, arrested, training, pressed