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United States of America v. Ilyas Kashmiri

April 1, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ILYAS KASHMIRI, ET AL.
(TAHAWWUR HUSSAIN RANA), DEFENDANT.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court are two Motions from the Government: (1) a Motion in Limine to Exclude Defendant Tahawwur Hussain Rana's (hereinafter, the "Defendant") Public Authority Defense; and (2) a Motion to Quash Trial Subpoenas that Defendant served on the Federal Bureau of Investigation (the "FBI") and Department of State (the "State Department"). For the reasons stated herein, the Court grants both of these motions.

I. INTRODUCTION

Defendant has been charged in three counts of a 12-count superseding indictment for providing material support to terrorists and foreign terrorist organizations, brought under 18 U.S.C. §§ 2339A, 2339B, in connection with the November 2008 attacks in Mumbai, India, by the Pakistan-based group Lashkar e Tayyiba ("Lashkar"), and a plot to attack a newspaper building in Denmark. His trial is scheduled to begin in this Court on May 16, 2011.

In compliance with FEDERAL RULE OF CRIMINAL PROCEDURE 12.3(a)(1),

Defendant provided notice on January 2, 2011, that he intends to assert a defense that he acted pursuant to his actual or believed exercise of public authority on behalf of the government of Pakistan and Pakistan's Inter-Services Intelligence Agency (the "ISI"). A week after providing notice of this intended defense, Defendant issued subpoenas under FEDERAL RULE OF CRIMINAL PROCEDURE 17(c) to the FBI and Department of State, both of which request: "Any and all . . . cables originating from or transmitted to India, Pakistan or the United States, regarding Tahawwur Hussain Rana; Daood Gilani a/k/a David Coleman Headley; Pakistan Inter-Services Intelligence Officers Major Iqbal, Lieutenant Colonel Shah and Major Samir Ali; and any connections between the Pakistan Inter-Services Intelligence (the "ISI") and Lashkar e Tayyiba." The Government subsequently filed two motions: (1) a Motion in Limine to exclude the intended public authority defense; and (2) a Motion to Quash the FBI and Department of State subpoenas.

II. LEGAL STANDARD

When a motion in limine involves the propriety of an affirmative defense, the trial court accepts as true evidence proffered by the defendant. See United States v. Tokash, 282 F.3d 962, 967 (7th Cir. 2002). The defendant, however, "must present more than a scintilla of evidence that demonstrates that he can satisfy the legal requirements for asserting the proposed defense." Id. (internal quotation omitted). If, however, as a matter of law the defendant's evidence does not support an affirmative defense, the court should preclude this defense from being presented at trial. See United States v. Baker, 438 F.3d 749, 753 (7th Cir. 2006). Further, a district court possesses discretion in deciding whether to grant or deny a motion to quash a subpoena. See Griffin v. Foley, 542 F.3d 209, 223 (7th Cir. 2008).

III. ANALYSIS

A. Exclude Public Authority Defense

Defendant's proposed defense is that his alleged illegal acts of providing material support to terrorists - at least those related to the Mumbai attacks - were done at the behest of the Pakistani government and the ISI, not the Lashkar terrorist organization. He argues that he is entitled to a public authority defense because he acted under the authority - whether actual or apparent - of the Pakistani government and the ISI. He finds support for this defense from grand jury testimony of Co-Defendant David Headley, who has pled guilty to the counts against him in the superseding indictment and whom the Government will most likely call as a witness in its case against Defendant. For example, Headley provided the following testimony before the grand jury:

During my trip to Chicago, I told [Defendant] about my meetings with Sajid and others in Lashkar. I also told him about my meetings with Major Iqbal, and told him how I had been asked to perform espionage work for ISI. I even told him some of the espionage stories that Major Iqbal had told me. I told [Defendant] about my assignment to conduct surveillance in Mumbai. I asked [Defendant] if it was okay with him that I set up a First World immigration office in Mumbai. I explained to him that the immigration office would provide a cover story for why I was in Mumbai. I told him that Major Iqbal would be providing money to pay for the expenses associated with setting up and operating the office. [Defendant] agreed.

Def.'s Resp. 3. Defendant argues that the ISI has authority to act in India to protect Pakistan's national interests. Therefore, he contends, he relied on a public authority, one that he argues is immune from criminal prosecution in United States courts under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602, et seq., when he engaged in activities such as allowing Headley to open a First World immigration office in Mumbai. This reliance, Defendant argues, negates the scienter required for him to be found guilty of the three charges.

Defendant centers his argument on the interplay between FSIA and the public authority defense. The Court, however, need not analyze whether FSIA encompasses immunity from criminal prosecution, or if the public authority defense is limited to actual authority or extends to apparent authority. Defendant's arguments on these issues contain a fatal flaw. Simply put, Defendant cannot rely on the authority of a foreign government agency or official to authorize his violations of United States federal law. See United States v. ...


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