The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Defendant Tahawwur Hussain Rana ("Rana") was convicted of knowingly conspiring to provide material support to a terrorist conspiracy to maim and murder people in Denmark (Count 11), and of providing material support to the terrorist organization Lashkar e Tayyiba ("Lashkar")(Count 12). By special interrogatory, the jury found that no one died as a result of Rana's actions in Count 12. Rana was acquitted of conspiring to provide material support to the conspiracies to bomb public places and kill or maim people in relation to the 2008 terrorist attacks in Mumbai, India (Count 9).
Before the Court are Rana's Post-Trial Motions. All parties are familiar with the complex background in this case, and this Court will not recite it again here.
I. MOTION FOR A NEW TRIAL
Federal Rule of Criminal Procedure 33 lets courts "vacate any judgment and grant a new trial if the interest of justice so requires." A defendant is entitled to a new trial if his substantial rights were jeopardized by trial errors, United States , at *5 (N.D. Ill. May 10, 2012), or the verdict is against the manifest weight of the evidence. United States v. Washington, 184 F.3d 653, 657 (7th Cir. 1999).
Rana seeks a new trial, alleging that the Court erroneously denied his pretrial request to sever the Denmark allegations from the Mumbai allegations. Rule 14 governs relief from prejudicial joinder. FED. R. CRIM. P. 14. However, a defendant must renew his severance motion at the close of evidence to avoid waiving the objection. Id. at 517-18. Rana has not identified, nor has the Court found, such a renewal in the record. See TR. 1447-70; 1704-05. Accordingly, Rana waived this claim.
Even if he had not waived it, the Court would not revisit its ruling, as Rana has not shown "actual prejudice that deprived him of his right to a fair trial." United States v. Rollins, 301 F.3d 511, 518 (7th Cir. 2002). The prejudice (if any) to Rana from the joinder was minimal. He was acquitted of the Mumbai charge, and substantial portions of the Mumbai evidence would have been admissible against him in a separate trial on the Denmark charges to show his knowledge and absence of mistake -- particularly because he claimed to believe that Headley's time in Denmark had legitimate business purposes. FED. R. EVID. 404(b); United States v. Nettles, 476 F.3d 508, 516 (7th Cir. 2007). Rana's jury confusion claim likewise fails; the jury was instructed to consider each count separately, and much of the complex evidence involving different people and terrorist groups would have been offered at a separate trial on the Denmark counts.
Nor was Rana prejudiced in his desire to present conflicting defenses to the two sets of charges. In discussing Rule 8, the Seventh Circuit has acknowledged that the challenge of presenting separate defenses is relevant to whether joinder is appropriate. United States v. Coleman, 22 F.3d 126, 132 (7th Cir. 1994). Neither party has identified Seventh Circuit authority directly on point, but the Fourth and Tenth Circuits have rejected claims that a defendant has a right to hide from the jury his inconsistent defenses to related charges. See United States v. Burrell, 720 F.2d 1488, 1493 (10th Cir. 1983) (citing United States v. Eades, 615 F.2d 617, 624 (4th Cir.), adopted in pertinent part, 633 F.2d 1075, 1078 (4th Cir.1980) (en banc), cert. denied, 450 U.S. 1001 (1981)). In any event, Rana would have had to explain some Mumbai-related evidence in a separate trial, and so was not seriously prejudiced by the joinder.
Rana also sought severance because he wanted to testify as to the Mumbai charges, but not on the Denmark charges. Cf. Nettles, 476 F.3d at 516-17. However, as discussed below, Rana argues that his acquittal on Count 9 and the special interrogatory under Count 12 demonstrate that he was acquitted of any wrongdoing relating to Mumbai. Accordingly, he was not prejudiced by failing to testify about Mumbai. Therefore, even if Rana had not waived his prejudicial joinder claim, he would not be entitled to a new trial under Rule 33.
B. FISA Unconstitutionality
Rana argues he is entitled to a new trial because admitting evidence obtained under the Foreign Intelligence Surveillance Act ("FISA" 50 U.S.C. § 1801 et seq.) violated the Fourth Amendment. Before trial, Rana sought disclosure of the FISA intercept applications in materials in this case, and to suppress any FISA electronic surveillance evidence. The Court denied those motions. Now, he again argues that FISA is unconstitutional to the extent that it permits surveillance primarily intended to obtain criminal evidence, but without offering the protections required by the Supreme Court's electronic surveillance cases. The Court is no more persuaded by Rana's position now than it was before trial. See also United States v. Abu-Jihaad, 630 F.3d 102, 120, 127 (2d Cir. 2010) (rejecting a Fourth Amendment challenge to FISA).
Among other things, FISA requires law enforcement to show probable cause to believe that a surveillance target is a foreign power or its agent, and that each place to be surveilled is being (or is about to be) used by such a power or agent. 50 U.S.C. § 1805. Applications must include a certification that a significant purpose of the surveillance is to obtain foreign intelligence information. See 50 U.S.C. § 1804(a)(6)(B). Additional procedures and protections apply if the target is a "United States person," which the parties agree that Rana is not; however, Rana has not pressed this distinction as a basis for his constitutional claim. See, e.g., § 1805(a)(4).
As the Court noted in denying the original motions, the United States Foreign Intelligence Surveillance Court of Review ("FISCR") considered and rejected a claim that after its 2001 amendments, FISA violates the Fourth Amendment. Specifically, that court concluded that the statute satisfies the reasonableness standard outlined by the Supreme Court's electronic surveillance cases, and that even if FISA does not satisfy the Fourth Amendment's warrant requirement, it "certainly comes close." In re Sealed Case, 310 F.3d 717, 746 (FISA Ct. Rev. 2002).
Since then, the Seventh Circuit has used the ex parte, in camera review process outlined by the statute, but declined to address the constitutional question. In re Grand Jury Proceedings, 347 F.3d 197, 203-04 (7th Cir. 2003). However, in United States v. Ning Wen, it concluded that, so long as an intercept is reasonable and proper under the statute, FISA evidence may be used in domestic prosecution "whether or not the agents expected to learn about the domestic offense." Ning Wen, 477 F.3d 896, 898-99 (7th Cir. 2007). Ning Wen, while not identical to this case, confirms the appropriateness of FISA's significant purpose test, which this Court applied in its original ruling to find that the FISA applications at issue satisfied the statute. Rana's insistence that the sole purpose of this intercept was to gather evidence for a criminal prosecution does not ...