Wednesday, February 01, 2006

Circuit Affirms Limitation on Testimony by Grand Jurors and Rebuffs Government's Attempt to Remove Judge from 9/11-Related Case

United States v. Osama Awadallah, Docket No. 05-2566-cr (2d Cir. Jan. 26, 2006) (Feinberg, Parker, Cudahy (by desig'n)): A very fine opinion by Judge Parker that (1) upholds Judge Scheindlin's pretrial ruling limiting the testimony of grand jurors the Government proposed to call as witnesses at Awadallah's perjury trial, and (2) rejects the Government's request to remove Judge Scheindlin from the case because of her alleged bias in favor of the defense. Much has already been said about the removal issue (see here and here for example), so this Blog will concentrate on the evidentiary ruling.

The essential facts are simple. Awadallah was arrested shortly after September 11, 2001, on a material witness warrant based on allegations that he knew and had contact with some of the 9/11 hijackers. Eventually, he was called before a grand jury in the SDNY and asked by the prosecutor (1) whether he knew someone named Khalid Al-Mihdhar (one of the hijackers on the plane that crashed into the Pentagon), and (2) whether certain handwriting in an examination booklet was his own. Awadallah denied knowing Khalid, and denied as well that the handwritten passage was by him.

The Government indicted Awadallah for perjury, claiming that he lied in making the two denials. Before trial, it became clear that Awadallah's defense would be that "any incorrect statements he may have made [before the grand jury] . . . were not knowingly made [but were] . . . the result of memory lapse, misunderstanding, exhaustion, confusion, and intimidation." Op. 9-10. Awadallah claimed, for instance, that he was physically abused by prison guards and otherwise mistreated during this time. [What nonsense -- this is America! A scurrilous accusation!]

The Government then told Judge Scheindlin that it wanted to call at trial certain grand jurors who would testify as to their subjective impressions of Awadallah's demeanor and appearance when he made the denials before the grand jury. Such testimony, it asserted, would rebut the defendant's claim that he did now knowingly make false statements. The judge denied the request on Rule 606(b) and Rule 403 grounds, and ruled that the Government could only elicit testimony from the grand jurors regarding "Awadallah's physical condition and the objective conditions surrounding his testimony." Op. 3.

The Government filed an interlocutory appeal challenging the evidentiary ruling, and also requested the Circuit to remand the case to another judge "to preserve the appearance of justice." The Circuit rejected both arguments.

Regarding the evidentiary issue, the Circuit ruled that Judge Scheindlin did not abuse her discretion in limiting the grand jurors' testimony under Rule 403 (and thus did not reach the Rule 606(b) issue). Regarding the probativeness prong of the 403 balancing, the Circuit pointed out that "the Government could [] elicit essentially the same testimony from other categories of witnesses, such as the court reporter, the interpreter, or [the AUSAs] who were present during the Grand Jury." Op. 14. The Circuit also doubted the Government's claim concerning the importance of the grand jurors' testimony, pointing out that "the Government has tried hundreds, if not thousands, of perjury cases without eliciting opinion evidence from a grand juror to prove knowledge." Op. 13 (noting only a single Eleventh Circuit case that mentions such testimony at trial).

And on the prejudice prong of the Rule 403 balancing test, the Circuit agreed with Judge Scheindlin that allowing the grand jurors to testify as to their subjective impressions of Awadallah's demeanor and appearance would result in unfair prejudice. First, a trial juror "would likely unduly identify with, and give unwarranted weight to the testimony of, a grand juror witness." Op. 15. Second, the introduction of "grand juror testimony is likely to confuse the different standards of proof that apply to a trial jury and a grand jury." Id. In sum, the Circuit concluded, Judge Scheindlin "acted well within the broad discretion afforded her when she concluded that permitting testimony by grand jurors regarding whether or not, in their opinion, the defendant's false statements were the product of confusion and/or intimidation potentially causes significant prejudice to the defendant because it could be interpreted as a grand juror giving the petit jurors advice on how to determine the central issue of the case." Op. 16.

The Circuit also rejected the Government's effort to remove Judge Scheindlin from the case. The Government claimed that she "(1) repeatedly acted in a manner that could be viewed as that of an advocate for the defendant, rather than that of an impartial arbiter; and (2) repeated issued rulings that could be viewed as indicating that she has prejudged the most significant issues in the case in favor of the defendant and against the Government." Op. 19. After canvassing the long procedural history of the case, as well as Judge Scheindlin's numerous rulings and decisions, the Circuit rejected both claims and remanded the case back to her for trial.

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