United States of America v. Mohamed Sadeek Odeh, Mohamed Rashed Daoud Al-’Owhali, Wadih El Hage

Court	Court of Appeals for the Second Circuit, Unites States of America, United States
Case number	01-1535-cr(L)
Decision title	Appeals Decision
Decision date	24 November 2008
Parties	United States of America Wadih El Hage, a.k.a. Mohamed Sadeek Odeh, a.k.a. Mohamed Rashed Daoud Al-'Owhali, a.k.a. Khalfan Khamis Mohamed
Other names	In re: Terrorist Bombings of U.S. Embassies in East Africa
Categories	Conspiracy, Terrorism
Keywords	murder, bomb, conspiracy, perjury, Terrorism
Links	Appeals Decision

Summary

Wadih El-Hage, 40, is a naturalised American citizen who was born in Lebanon. He was Osama bin Laden's personal secretary. He was accused of being the key organiser of the Kenya cell and of setting up front companies in Kenya for Al Qaeda. He left Kenya almost a year before the bombings, after being questioned by the FBI in Africa. At the time of the bombings, he was living in Arlington, Texas, with his wife, April, and seven children. El Hage claimed he only worked for bin Laden in legitimate businesses and had no contact with him since 1994. El Hage was charged with conspiracy to murder Americans.

On 29 May 2001, El Hage was convicted for conspiracy to kill United States officers and employees engaging in official duties and conspiracy to destroy buildings and property of the United States. In addition, he was found guilty of giving false statements to a federal jury (perjury). On the basis of this conviction, El Hage was sentenced to life in prison without the possibility of being released.

On 24 November 2008, the Court of Appeals affirmed the conviction of El Hage and returned the judgment for reconsideration of the sentence because the District Court made procedural errors. El Hage was sentenced again to life imprisonment.

Procedural history

On 15 September 1998, El Hage testified before the grand jury investigation into the African U.S. Embassy bombings.

On 4 November 1998, the United States District Court Southern District of New York issued an indictment against El Hage and 20 other alleged terrorists. The charges against El Hage included conspiracy to kill United States nationals. As a result, the charges against him included murder of United States nationals, United States military personnel stationed in Somalia and Saudi Arabia, United States nationals and other “internationally protected persons” employed at the United States Embassies in Kenya and Tanzania; and concealment of the activities of the conspiracy, and perjury.

On 29 May 2001, he was unanimously found guilty by a federal jury of both perjury and conspiracy to murder internationally protected persons, US officers, and employees engaging in official duties and conspiracy to destroy buildings and property of the United States. He received life in prison, plus additional time for perjuring himself before a grand jury investigating bin Laden's activities.

On 18 October 2001, the United States District Court for the Southern District of New York sentenced El Hage to life in prison without parole.

In October 2003, El Hage moved for a new trial pursuant to Rule 33 based, in part, on the government’s post-trial disclosure of videotapes depicting pretrial interviews with one of the government’s main witnesses.

On 2 November 2005, the District Court, after holding a series of evidentiary hearings on this matter, denied El-Hage’s motion.

On 16 November 2005, El-Hage moved for reconsideration that was denied in an order of the District Court entered on 5 December 2005.

Related developments

The Federal District Court in Manhattan resentenced El Hage to life in prison explaining that El Hage was "quite likely to engage in or further terrorist activities against this country in this district until [his] last breath, if [he] were ever released." The Court also re-imposed a $33.8 million restitution order, saying $7 million would go to the families of victims and the rest to the US government.

Legally relevant facts

El Hage was a high-ranking associate of Usama Bin Laden who performed key functions for Al-Qaeda to advance the organisation's terrorist goals, including facilitating the bombing of the U.S. Embassies in Kenya and Tanzania, killing 224 people. Among other things, El Hage disbursed the Al-Qaeda payroll, procured equipment for the organisation, and operated Al-Qaeda businesses, which provided cover for operatives and generated cash for the organisation. He also provided false identification documents to the group so that operatives could travel undetected and participated in secret meetings with Al-Qaeda leaders, after which he carried messages from Bin Laden to other members of the organization. In his capacity as one of the leaders of al Qaeda's East Africa cell, El Hage conveyed Bin Laden’s order that the cell – which played a key role in the 1998 Embassy Bombings – prepare for military action.

Both before and after the bombings took place, El Hage obstructed the investigation into Al-Qaeda by repeatedly lying to a federal grand jury in the Southern District of New York concerning his knowledge of and involvement in Al-Qaeda.

Core legal questions

Does the mandatory application of the Sentencing Guidelines warrant a remand of El Hage’s case for re-sentencing? (p. 89)
Was there sufficient evidence to support the El Hage’s conviction? (pp. 20-25)
Was the indictment sufficient to support a conviction of a capital offense? (pp. 14-19)

Specific legal rules and provisions

Rule 16(d)(1) of the Classified Information Procedures Act (CIPA).
Rule 14 of the Federal Rules of Criminal Procedure.

Court's holding and analysis

El Hage brought an appeal challenging (1) the sentence imposed upon him by Judge Sand, (2) an order entered on 2 November 2005 by Judge Kevin Thomas Duffy, denying his motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, and (3) an order entered on 5 December 2005 by Judge Duffy, denying El-Hage’s motion for reconsideration of the 2 November order.

The United States Court of Appeal dismisses all claims with the exception of the challenge to El Hage’s sentence on the basis of the District Court’s mandatory application of the United States Sentencing Guidelines based on then-binding Circuit precedent (p. 5).

The Court of Appeals held that the District Court’s calculation of El Hage’s Guidelines range was correct (p. 83). However, the Court of Appeals found that the mandatory application of the Sentencing Guidelines, violated the teachings of United States v. Booker. As a result, El Hage was entitled to be resentenced (p. 89).

In addition, the Court of Appeal ruled that the Fourth Amendment does not require the U.S. government to obtain a warrant from a federal judge or magistrate to authorize an overseas search targeting a U.S. citizen.

The United States Court of Appeal affirmed the judgment of conviction entered by the District Court and remanded the case to the District Court solely for the purpose of resentencing (pp. 90-91).