14 December 2001
Source: Electronic records of Western District of Washington via PACER.

Ahmed Ressam was convicted in April 2001 of nine counts relating to terrorism. He has not yet been sentenced and is reportedly providing information to US authorities on terrorism.

These are case documents in USA v. Ahmed Ressam involving the Seattle Times' request to unseal records. See related Times news report. Cryptome agrees with the Seattle Times' argument that it is in the public interest to make court records widely available.

In addition to these documents, Cryptome has downloaded the full offering of nearly 293 TIFF files of court records in Ressam of several hundred pages, with a total collective file size of over 40MB. A zipped file of all records is available at no cost for researchers who may want the full collection. Send a request to: jya@pipeline.com

See a list of all records on the court docket through December 1, 2001: http://cryptome.org/ar/usa-v-ar-dkt.htm (99KB)

See previous offering of Ressam records relating to the Canadian Security Intelligence Service: http://cryptome.org/ar/usa-v-ar-csis.htm

Original file in multiple-image TIFF format: http://cryptome.org/ar/ar-315.tif (159KB)

[4 pages.]

Docket No. 315

Davis Wright Tremaine LLP

ANCHORAGE BELLEVUE CHARLOTTE HONOLULU LOS ANGELES NEW YORK
PORTLAND SAN FRANCISCO SEATTLE WASHINGTON, D.C. SHANGHAI

MICHELE EARL-HUBBARD     2600 CENTURY SQUARE     TEL (206) 612-3150
DIRECT (206) 628-7636             1501 FOURTH AVENUE        FAX (206) 628 7699
micheleearlhubbard@dwt.com     SEATTLE, WA 98101 1688   www.dwt.com

October 17, 2001

Via Hand- Delivery

Hon. John C. Coughenour
United States District Court for the Western District of Washington
1010 Fifth Avenue
609 U.S. Courthouse
Seattle, WA 98104

Re: United States of America v. Ahmed Ressam, Case Number 99-CR-666

Dear Judge Coughenour:

I represent The Seattle Times and its reporter Mike Carter. Mr. Carter recently contacted the Court to check on the status of records sealed during the course of the trial in the above-referenced case, He was instructed to write a letter to the Court asking the Court to unseal materials. The Times has asked me to draft this request. We respectfully request that the Court schedule a hearing on an expedited basis to allow the parties and Times to be heard. If you require a formal motion to intervene or motion to unseal, please advise me as soon as possible. My direct line is (206) 6290-7636. 1 have sent copies of this letter to the attorneys of record for the prosecution and Mr. Ressam. A summary of the basis for our request is explained below.

Factual Basis:

Ahmed Ressam was tried in a public trial from March to April of this year. He was convicted on nine counts. His sentencing has been continued to February 14, 2002. Beginning in December 1999 up through the trial, the Court sealed a number of court records. Most of these records remain sealed today more than 6 months after the conclusion of the trial. These records include motions by the parties and the Court's rulings on those motions. The docket information available to the public does not identify the subject matter of those motions or the reason the records were sealed. No publicly filed order is available indicating the rationale for scaling. The Times, and public, is therefore at a distinct disadvantage in challenging or assessing the appropriateness of the continued sealing of these materials. Presumably, many of these records were sealed to preserve Mr. Ressam's Sixth Amendment rights to a fair trial. As his trial has concluded, records sealed for this purpose should now be unsealed. The need for and appropriateness of sealing for other reasons may be similarly changed. The Times requests that the Court re-examine its earlier sealing orders and assess whether continued sealing is legally appropriate.

Legal Basis:

The United States Supreme Court has firmly established that under the First and Fourteenth Amendments to the United States Constitution, "the press and general public have a constitutional right of access to criminal trials." Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603 (1982); accord Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). This right is based on the public's fundamental interest in the fair and open administration of justice and extends to pretrial proceedings and to court documents. Press Enterprise Co. v. Superior Court ("Press Enterprise II"), 478 U.S. 1, 12 (1986) (preliminary hearing); Seattle Times Co. v. United States District Court, 845 F.2d 1513, 1516 (9th Cir. 1988) (pretrial detention documents); CBS, Inc. v. District Court, 765 F.2d 823, 825 (9th Cir. 1985) (recognizing "presumption that the public and the press have a right of access to criminal proceedings and the documents filed therein ... [that] extends to document filed in pretrial proceedings as well as in the trial itself.").

Fundamental to the right of access is the recognition that public access to criminal trials and pretrial hearings "is essential to the proper functioning of the criminal justice system." Press Enterprise II, 478 U.S. at 12. "[O]ne of the important means of assuring a fair trial is that the process be open to neutral observers." Id. at 7. Such openness "enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system." Id. at 9 (internal quotations and citation omitted); see also Seattle Times Co., 845 F.2d at 1516 (emphasizing the increasing importance of pretrial proceedings in the modem criminal justice system and recognizing that access to these proceedings and court documents furthers the dual policy goals of "a public educated in the workings of the judicial system and a system subjected to healthy public scrutiny"); Associated Press v. United States Dist. Court, 705 F.2d 1143 (9th Cir. 1983) (press and public have First Amendment access rights to documents filed in connection with criminal pretrial proceedings). "There is no reason to distinguish between [criminal trial] proceedings and the documents filed in regard to them." Associated Press, 705 F.2d at 1145.

"The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Press-Enterprise Co. v. Superior Court ("Press-Enlerprise I"), 464 U.S. 501, 510 (1984). Where the interest asserted is the right to a fair trial, proceedings and records should be closed only

if specific findings are made demonstrating that, first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights.

Press-Enterprise II, 478 U.S. at 14. In sum, closure of proceedings and court records, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness. Press-Fnierprise I, 464 U.S. at 509.

In Seattle Times Co. v. District Court, a case involving sealed court records including financial affidavits and pre-trial detention briefs, the Ninth Circuit identified three substantive tests that must be satisfied to justify abrogating the right of access. 945 F.2d at 1517. First, there must be a substantial probability that irreparable damage to the defendant's fair trial right will result if access is maintained. Id. Second, there must be a substantial probability that alternatives to closure will not adequately protect the right to a fair trial. Id. at 1518. Third, there must be a showing of a substantial probability that closure will be effective in protecting against the perceived harm. Id. at 1518.

The Ninth Circuit has mandated that "any interest justifying closure must be specified with particularity, and there must be findings that the closure remedy is narrowly confined to protect that interest." CBS, 765 F.2d at 825 (ordering post-trial records and proceedings opened); see also Oregonian Publ. v. District Court, 920 F.2d 1462 (9th Cir. 1990); In re Washington Post, 807 F.2d 383, 392-93 (4th Cir. 1986) (order sealing plea and sentencing hearing transcripts and documents held unconstitutional because of failure to make factual findings that disclosure would threaten national security). The docket should indicate the existence of any motions to seal records and the hearings on any such motions, and the existence of any sealed documents. See, e.g, United States v. Valenti, 987 F.2d 708, 715 (11th Cir. 1993) (partial docket that omits listing of closed bench conferences and motions filed in camera is "unconstitutional infringement on the public and press's qualified right of access to criminal proceedings"); Washington Post v. Robinson, 935 F.2d 282, 289 (D.C. Cir. 1991) (motions to seal plea agreements, for which there is a First Amendment right of access, must be publicly docketed).

The trial of Ahmed Ressam was a matter of intense public interest. Many of the records related to that proceeding were kept from the public view throughout the trial. The docket information available to the public is so sparse that the public has no information regarding the subject matter of the various motions or the Court's rationale for allowing secrecy. The docket also fails to reveal the existence of motions to seal many of the records or hearings on such motions.

In this instance the Times is willing to accept that the Court exercised reasonable judgment in sealing the materials during the pendency of the trial. However, now that the trial is concluded, the reasons for secrecy may no longer exist, and other less restrictive alternatives are available to the Court in place of the blanket sealing of entire documents. See, e.g, Press Enterprise I, 464 U.S. at 512 (concluding that scaling order should be limited to "information that was actually sensitive," i.e., "only such parts ofthe transcript as necessary to preserve the anonymity of the individuals sought to be protected"). For instance, the Court could redact limited portions of the materials that it deems absolutely essential to protect any compelling countervailing interests that still exist here. In U.S. v. Kaczynski, for example, the court redacted small portions of a psychiatric report to protect the privacy of innocent third parties, but left the "vast bulk" of the report accessible to the public. 154 F.3d 930, 932 (9th Cir. 1998).

TheTimes asks that the Court re-examine its earlier grounds for sealing and determine if sealing remains constitutionally appropriate. Mr. Ressam's trial is now over, so sealing based on preservation of his 6th Amendment rights are no longer valid. To the extent the Parties seek continued sealing based on alleged prejudice to a future trial or re-trial, the Court has other available less restrictive alternatives to protect such interests. See, e.g., Application of National Broadcasting Co, Inc., 635 F.2d 945, 953-54 (2d Cir. 1980) (recommending use of voir dire to weed out biased jurors as better alternative to sealing records). A fear that a future trial may be prejudiced is too "speculative" to justify sealing court documents in a past case. Id. at 954.

We ask that the Court schedule a hearing on an expedited basis to address these issues.

Very truly yours,

Davis Wright Tremaine LLP

[Signature]

Michele Earl-Hubbard

cc: Mr. David Boardman
      Mr. Jim Neff
      Mr. Mike Carter
      Jerry Diskin, Esq.
      Tom Hillier, Esq.

Original file in TIFF format: http://cryptome.org/ar/ar-316.tif (17KB)

[1 page.]

Docket No. 316

FILED
OCT 18 2001
AT SEATTLE
CLERK U.S. DISTRIC COURT
WESTERN DISTRICT OF WASHINGTON

The following Minute Order is made by direction of the Court, the Honorable John C. Coughenour, Chief United States District Judge:

A hearing on The Seattle Times' request to unseal records sealed before and during trial in this case is hereby set for 9:30, a.m., Friday, October 26, 2001.

DATED this 18th day of October, 2001.

BRUCE RIFKIN, Clerk of Court

By [Signature]

Deputy Clerk

MINUTE ORDER -- 1

Original file in multiple-image TIFF format: http://cryptome.org/ar/ar-317.tif (174KB)

[5 pages.]

Docket No. 317

FILED
OCT 25 2001
AT SEATTLE
CLERK U.S. DISTRIC COURT
WESTERN DISTRICT OF WASHINGTON

Chief Judge Coughenour

The United States of America, by Francis J. Diskm, United States Attorney for the Western District of Washington, and Andrew R. Hamilton and Steven C. Gonzalez, Assistant United States Attorneys for said District, files this response to the Seattle Times' request to Unseal Records.

The following documents were filed under seal, the Government's position with respect to unsealing each document is detailed below:

DOCUMENT	DOCKET#	DATE FILED	U S POSITION
Affidavit of Fred Humphries in Support of Material Witness Warrant	14-15	12/29/1999	No objection
Ex Parte Motion for Issuance of Letter Rogatory and Letter Rogatory	52	02/29/2000	No objection (with redaction)
Memorandum of Law in Support of (with redaction) Government's Ex Parte Motion for Issuance of Letter Rogatory	53	02/29/2000	No objection
Supplemental Memorandum of Law in Support of Government's Ex Parte Motion for Issuance of a Letter Rogatory	58	03/02/2000	No objection (with redaction)
Signed Order for Issuance of Letter Rogatory	54	03/03/2000	No objection
Ex. Parte Motion for Issuance of a First Supplemental Letter Rogatory	100	05/31/2000	No objection (with redaction)
Memorandum of Law in Support of Government's Ex Parte Motion for Issuance of a First Supplemental Letter Rogatory	101	05/31/2000	No objection (with redaction)
Signed First Supplemental Letter Rogatory Order	102	06/02/2000	No objection
U.S. Motion to Take Depositions and Request for Expedited Consideration	103	06/08/2000	No objection
Affidavits of AUSA Hamilton and DUSM Behrend	104-105	06/08/2000	No objection
Affidavit of Frederick W. Humphries, II	110	06/22/2000	No objection
U.S. Response to Defendant's Reply to U S. Motion to Take Depositions	109	06/22/2000	No objection
Defendant's Motion to Shorten Time to Hear Defendant's Motion to Extend Time for Filing Reply to Government's Motion	108	06/22/2000	No objection
Proposed Order Granting Defendant's Motion to Shorten Time	Unk.1	06/22/2000	No objection
Defendant's Motion to Extend Time for Filing Reply to Government's Motion	Unk.	06/22/2000	No objection
Proposed Order Granting Defendant's Motion for Extension of Time	Unk.	06/22/2000	No objection
Stipulated Motion and Order Advancing Date Noted for Government's Motion to Take Depositions from 6/30/00 to 6/23/00	111-112	06/22/2000	No objection
Defendant's Reply to Government's Motion to Take Depositions	106	06/22/2000	No objection
Stipulation Request for an Order Setting Dates for Depositions in Montreal, Canada	113	08/07/2000	No objection
Order Setting Dates for Depositions in Montreal, Canada	114	08/14/2000	No objection
Stipulated Motion and Order Directing that the Government Pay the Expenses of Travel to Vancouver	115	08/28/2000	No objection
Motion for Pre-Trial Conference	116	08/28/2000	No objection
Ex Parte Motion for Issuance of a Letter Rogatory (Germany)	139	10/10/2000	No objection
Memorandum of Law in Support of Government's Ex Parte Motion for Issuance of a Letter Rogatory (Germany)	140	10/10/2000	No objection
Order for Letter Rogatory (Germany)	141	10/10/2000	No objection
Government's Motion for Protective Order	142	11/02/2000	No objection
Signed Protective Order	143	11/02/2000	No objection
Motions and Orders Re: Classified Information Procedures Act  150-154	150-154	11/30/2000 and 12/21/2000	Objections
Motions and Orders Re: Classified Information Procedures Act	167-168	01/25/2001 and 02/02/2001	Objections Objections
U S. Motion to Take a Deposition and Request for Expedited Consideration	171	02/08/2001	No objection (with redactions)
Defendant's Reply to Government's Motion to Take a Deposition of an Unidentified Witness	174	02/13/2001	No objection (with redactions)
Defendant's Motion and Memorandum to Compel Government to Make Mutual Legal Assistance Treaty Request Relating to Unidentified Witness	175	02/13/2001	No objection
Defendant's Proposed Order Granting Defendant's Motion to Compel Government to Make an MLAT Request Relating to Unidentified Witness	Unk.	02/13/2001	No objection
Defendant's Motion to Shorten Time	176	02/13/2001	No objection
Defendant's Order Shortening Time	177	02/13/2001	No objection
Defendant's Motion to Shorten Time to Hear Defendant's Motion for an Order Directing Government to Provide Defense with Information it Expects to Use for Rebuttal to Information provided to the Defense Under the Classified Information Procedures Act	196	02/26/2001	No objection
Defendant's Proposed Order Granting Motion to Shorten Time to Hear Defendant's Motion for an Order Directing Government to Provide Defense with Information it Expects to Use for Rebuttal to Information Provided to the Defense Under the Classified Information Procedures Act	195	02/26/2001	No objection
Defendant's Proposed Order Granting Defendant's Mofion for an Order Directing to Government to Provide Defense with Information it Expects to Use for Rebuttal to Information Provided to the Defense Under the Classified Information Procedures Act	193	02/26/2001	No objection
Government's Reply to Defendant's Motion to Compel an MLAT Request Re Unidentified Witness	Unk.	02/26/2001	No objection
Declaration of Frederick Humphries, II	194	02/26/2001	No objection
Motions and Orders Relating to Classified Information Procedures Act	200-202	03/05/2001	No objection
Defendant's Motion to Compel Production of Classified Information and For Further Hearings Pursuant to the Requirements of the Classified Information Procedures Act	203-204	03/05/2001	No objection
Minute Order Granting Defendant's Motion to Shorten Time on Underlying Motion to Compel Production of Classified Information	Unk.	03/05/2001	No objection
Government's Response to Defendant's Motion to Compel Production of Classified Information and for Further Hearings Pursuant to the Requirements of Classified Information Procedure Act	261	03/26/2001	No objection
Defendant's Objection to Admissibility of Records	262	03/26/2001	Objections
Government's Memorandum of Law	266	03/27/2001	No objection
Defendant's Motion and Declaration for (1) Order for Issuance of Out-of-District Subpoenas, and (2) Order Regarding Withesses' Travel Expenses	269	03/28/2001	No objection
Order Directing Issuance of Subpoenas for Out-of-District Witnesses	270	03/30/2001	No objection
Ex Parte Motion for Order by USA	309	07/06/2001	Objections
Government's Memorandurn in Support of Motion for Order by USA	310	07/06/2001	Objections
Lodge Order re: Motion for Order by Government	--	07/06/2001	Objections
Proposed Document	--	07/06/2001	Objections
Minute Order re: Motion	311	07/10/2001	Objections
Government's Motion for Order	312	07/11/2001	Objections
Signed Order re: Motion for Order by Government	313	07/13/2001	Objections

DATED this 25th day of October, 2001.

Respectfully submitted,

[Signature]

FRANCIS J. DISKIN
United States Attornye

[Signature]

ANDREW R. HAMILTON
Assistant United States Attorney

[Signature]

STEVEN C. GONZALEZ
Assistant United States Attorney

[Footer all pages.]

GOVERNMENT'S RESPONSE TO THE SEATTLE
TIMES' REQUEST MOTION TO UNSEAL
DOCUMENTS/RESSAM- 5
CR99-666C

UNITED STATES ATTORNEY
601 Union Streett, Suite 5100
Seattle, Washington 98101-3903
(206) 553-7970

Original file in TIFF format: http://cryptome.org/ar/ar-318.tif (27KB)

[1 page.]

Docket No. 318

                  UNITED STATES DISTRICT COURT 
                 WESTERN DISTRICT OF WASHINGTON 
                           AT SEATTLE

HON. JOHN C. COUGHENOUR, U. S. DISTRICT COURT

Deputy Clerk: Julie Mahnke

Court Reporter: Caroline Castle          Date: Oct. 26, 2001
-----------------------------------------------------------------
                             MINUTES
-----------------------------------------------------------------
Case No.       Title                         Attorneys present

CR99-666C    United States of America    Diskin/Gonzalez/Hamilton
              v.
             Ahmed Ressam                Hillier/Earl-Hubbard

PROCEEDING:     Hearing on Request to Unseal Documents

                Called, counsel heard. 
                The court will prepare a written order directing 
                that certain documents be unsealed. Further 
                in-camera submissions are to be filed regarding 
                remaining documents.




                --------------

Original file in multiple-image TIFF format: http://cryptome.org/ar/ar-319.tif (46KB)

[3 pages.]

Docket No. 319

FILED
OCT 26 2001
AT SEATTLE
CLERK U.S. DISTRIC COURT
WESTERN DISTRICT OF WASHINGTON

This matter comes before the Court on The Seattle Times' request to open documents sealed during pretrial and trial proceedings in this case. The Court hereby directs the clerk to open immediately the following documents. Sealed documents that have no corresponding docket number are identified with an "X" and a brief description of the document. [Document name and US Position added by Cryptome.]

DOCUMENT	DOCKET NUMBER	DATE FILED	U S POSITION
Affidavit of Fred Humphries in Support of Material Witness Warrant	14	12/29/99	No objection
Affidavit of Fred Humphries in Support of Material Witness Warrant	15	12/29/99	No objection
Memorandum of Law in Support of (with redaction) Government's Ex Parte Motion for Issuance of Letter Rogatory	53	02/29/00	No objection
Signed Order for Issuance of Letter Rogatory	54	03/03/00	No objection
Signed First Supplemental Letter Rogatory Order	102	06/02/00	No objection
U.S. Motion to Take Depositions and Request for Expedited Consideration	103	06/08/00	No objection
Affidavit of AUSA Hamilton	104	06/08/00	No objection
Affidavit of DUSM Behrend	105	06/08/00	No objection
Defendant's Reply to Government's Motion to Take Depositions	106	06/22/00	No objection
Defendant's Motion to Shorten Time to Hear Defendant's Motion to Extend Time for Filing Reply to Government's Motion	108	06/22/00	No objection
U.S. Response to Defendant's Reply to U S. Motion to Take Depositions	109	06/22/00	No objection
Affidavit of Frederick W. Humphries, II	110	06/22/00	No objection
Proposed Order Granting Defendant's Motion to Shorten Time	X	06/22/00	No objection
Defendant's Motion to Extend Time for Filing Reply to Government's Motion	X	06/22/00	No objection
Proposed Order Granting Defendant's Motion for Extension of Time	X	06/22/00	No objection
Stipulated Motion and Order Advancing Date Noted for Government's Motion to Take Depositions from 6/30/00 to 6/23/00	111	06/22/00	No objection
Stipulated Motion and Order Advancing Date Noted for Government's Motion to Take Depositions from 6/30/00 to 6/23/00	112	06/22/00	No objection
Stipulation Request for an Order Setting Dates for Depositions in Montreal, Canada	113	08/07/00	No objection
Order Setting Dates for Depositions in Montreal, Canada	114	08/14/00	No objection
Stipulated Motion and Order Directing that the Government Pay the Expenses of Travel to Vancouver	115	08/28/00	No objection
Motion for Pre-Trial Conference	116	08/28/00	No objection
Ex Parte Motion for Issuance of a Letter Rogatory (Germany)	139	10/10/00	No objection
Memorandum of Law in Support of Government's Ex Parte Motion for Issuance of a Letter Rogatory (Germany)	140	10/10/00	No objection
Order for Letter Rogatory (Germany)	141	10/10/00	No objection
Government's Motion for Protective Order	142	11/02/00	No objection
Signed Protective Order	143	11/02/00	No objection
Defendant's Motion and Memorandum to Compel Government to Make Mutual Legal Assistance Treaty Request Relating to Unidentified Witness	175	02/13/01	No objection
Defendant's Proposed Order Granting Defendant's Motion to Compel Government to Make an MLAT Request Relating to Unidentified Witness	X	02/13/01	No objection
Defendant's Motion to Shorten Time	176	02/13/01	No objection
Defendant's Order Shortening Time	177	02/13/01	No objection
Defendant's Proposed Order Granting Defendant's Mofion for an Order Directing to Government to Provide Defense with Information it Expects to Use for Rebuttal to Information Provided to the Defense Under the Classified Information Procedures Act	193	02/26/01	No objection
Declaration of Frederick Humphries, II	194	02/26/01	No objection
Defendant's Proposed Order Granting Motion to Shorten Time to Hear Defendant's Motion for an Order Directing Government to Provide Defense with Information it Expects to Use for Rebuttal to Information Provided to the Defense Under the Classified Information Procedures Act	195	02/26/01	No objection
Defendant's Motion to Shorten Time to Hear Defendant's Motion for an Order Directing Government to Provide Defense with Information it Expects to Use for Rebuttal to Information provided to the Defense Under the Classified Information Procedures Act	196	02/26/01	No objection
Government's Reply to Defendant's Motion to Compel an MLAT Request Re Unidentified Witness	X	02/26/01	No objection
Motions and Orders Relating to Classified Information Procedures Act	200	03/05/01	No objection
Motions and Orders Relating to Classified Information Procedures Act	201	03/05/01	No objection
Motions and Orders Relating to Classified Information Procedures Act	202	03/05/01	No objection
Defendant's Motion to Compel Production of Classified Information and For Further Hearings Pursuant to the Requirements of the Classified Information Procedures Act	203	03/05/01	No objection
Defendant's Motion to Compel Production of Classified Information and For Further Hearings Pursuant to the Requirements of the Classified Information Procedures Act	204	03/05/01	No objection
Minute Order Granting Defendant's Motion to Shorten Time on Underlying Motion to Compel Production of Classified Information	X	03/05/01	No objection
Government's Response to Defendant's Motion to Compel Production of Classified Information and for Further Hearings Pursuant to the Requirements of Classified Information Procedure Act	261	03/26/01	No objection
Government's Memorandum of Law	266	03/27/01	No objection
Defendant's Motion and Declaration for (1) Order for Issuance of Out-of-District Subpoenas, and (2) Order Regarding Withesses' Travel Expenses	269	03/28/01	No objection
Order Directing Issuance of Subpoenas for Out-of-District Witnesses	270	03/30/01	No objection

SO ORDERED this 26th day of October, 2001.

[Signature]

CHIEF UNITED STATES JUDGE

[Footer all pages]

ORDER

Original file in TIFF format: http://cryptome.org/ar/ar-320.tif (23KB)

[1 page.]

Docket No. 320

FILED
OCT 26 2001
AT SEATTLE
CLERK U.S. DISTRIC COURT
WESTERN DISTRICT OF WASHINGTON

This matter comes before the Court on The Seattle Times' request to open documents sealed during pretrial and trial proceedings in this case. On October 26, 2001, the Court directed the clerk to open immediately approximately forty-five sealed documents. The Court hereby amends its order in the following manner: docket number 102, filed June 2, 2000, is to remain sealed pending further consideration by the Court.

SO ORDERED this 26th day of October, 2001.

[Signature]

CHIEF UNITED STATES JUDGE

[Footer]

ORDER

Original file in multiple-image TIFF format: http://cryptome.org/ar/ar-321.tif (84KB)

[2 pages.]

Docket No. 321

FILED
OCT 26 2001
AT SEATTLE
CLERK U.S. DISTRIC COURT
WESTERN DISTRICT OF WASHINGTON

FEDERAL PUBLIC DEFENDER
Western District of Washington

Thomas W. Hillier II
Federal Public Defender

October 23, 2001

VIA HAND DELIVERY

Chief Judge John C. Coughenour
United States District Court
1010 Fifth Avenue, Room 609
Seattle, Washington 98104

Re: United States v. Ahmed Ressam; CR99-666C

Dear Chief Judge Coughenour:

I am in receipt of attorney Michele Earl-Hubbard's letter of October 17, 2001. We have pulled documents filed by the defense under seal and reviewed the same. From our perspective, we have no objection to the unsealing of those documents. However, the government might and should be heard. We take no position as to documents submitted to the Court under seal by the government.

The Court has scheduled a hearing for this matter on October 26, 2001. Jo Ann Oliver discussed the hearing with Ahmed Ressam and he does not want to be present if that is agreeable to the Court. Attached is a statement to that effect signed by Mr. Ressam after he discussed the matter with Ms. Oliver. Ms. Oliver's translation of the statement is included. On his behalf, I would respectfully request that Mr. Ressam not be required to appear at the October 26th hearing.

Thank you for your consideration.

Very truly yours,

[Signature]

Thomas W. Hillier II
Federal Public Defender

TWH/kac
Enclosure
cc: Michele Earl Hubbard (via hand delivery)
Jerry Diskin (via hand delivery)

1111 Third Avmue, Room 1100, Seattle, Washington 98101 - Telephone (206) 553-1100 Fax (206) 553-0400

________________________________

[Handwritten note in French signed by Ressam on October 19, 2001, and witnessed by Jo Ann Oliver. English translation followed:]

My lawyer spoke to me about the wish of the Seattle Times to unseal documents relating to my trial. I am in agreement with any decision by my lawyers and do not want to attend any court hearing should there be one.

___________________________________

The above was discussed with defendant, Ahmed Ressam, by his attorney, Assistant Federal Public Defender Jo Ann Oliver, and signed by him in my presence.

[Signature]

Jo Ann Oliver

Original file in TIFF format: http://cryptome.org/ar/ar-322.tif (15KB)

[1 page.]

Docket No. 322

FILED
OCT 26 2001
AT SEATTLE
CLERK U.S. DISTRIC COURT
WESTERN DISTRICT OF WASHINGTON

[Balance of page redacted.]

Original file in TIFF format: http://cryptome.org/ar/ar-323.tif (22KB)

[1 page.]

Docket No. 323

FILED
OCT 29 2001
AT SEATTLE
CLERK U.S. DISTRIC COURT
WESTERN DISTRICT OF WASHINGTON

This matter comes before the Court on The Seattle Times' request to open documents sealed during pretrial and trial proceedings in this case. On October 26, 2001, the Court directed the clerk to open immediately approximately forty-five sealed documents. The Court hereby amends its order in the following manner: docket numbers 200, 201, and 202 are to remain sealed pending further consideration by the Court.

SO ORDERED this 29th day of October, 2001.

[Signature]

CHIEF UNITED STATES JUDGE

[Footer]

ORDER

Original file in multi-image TIFF format: http://cryptome.org/ar/ar-324.tif (1.6MB)

[58pages.]

Docket No. 324

FILED
OCT 29 2001
AT SEATTLE
CLERK U.S. DISTRIC COURT
WESTERN DISTRICT OF WASHINGTON

The following Minute Order is made by direction of the Court, the Honorable John C. Coughenour, Chief United States District Judge:

The following documents are hereby UNSEALED and made available to the public WITH REDACTIONS: Docket Numbers 52, 58, 100, 101, 102, 171 and 174.

DATED this 29 day of October, 2001.

BRUCE RIFKIN, Clerk of Court

By [Signature]
Deputy Clerk

MINUTE ORDER -- 1

PUBLIC RECORD 1

Vol. 3 Tab K
Docket #52

FEB 29 2000
AT SEATTLE
CLERK U.S. DISTRIC COURT
WESTERN DISTRICT OF WASHINGTON

REDACTED

Judge Coughenour

The United States District Court for the Western District of Washington presents its greetings to the judicial authorities in France and respectfully requests the assistance of the courts of France in connection with a criminal matter. The United States District Court for the Western District of Washington assures the courts of France and the appropriate judicial authority designated to execute this request that the courts of the United States are authorized to assist foreign tribunals in the executions of letters rogatory for assistance in criminal matters.

FACTS

The United States Attorney, who is the federal prosecutor for this district, is prosecuting charges that AHMED RESSAM, ABDELMAJID DAHOUMANE, and others violated United States criminal laws by conspiring to destroy or damage property wit explosives transcending a national boundary, using false identification documents to defraud the United States, impersonating another to gain unauthorized entry to the United States, making false statements about identity to U.S. Customs inspectors, and smuggling explosives into the United States from Canada on December 14, 1999. The roles of the federal prosecutors in this case are to gather evidence for presentation to grand juries, which may bring additional formal charaes if they find that additional federal criminal laws have been violated. In addition, the federal prosecutors will prosecute the defendants formally charged after the presentation of such evidence to grand juries.

The United States Attorney is informed that evidence relevant to the investigation and prosecution of AHMED RESSAM and ABDELMARD DAHOUMANE and their associates is located in France. The United States Attorney has therefore requested that this court issue this letter rogatory and has provided the following facts in support of that request. Because of the sensitive nature of this investigation and prosecution, please treat this letter rogatory as confidential and, to the extent possible under your law, prevent public disclosure of any matter relating to its execution.

The investigation of AHMED RESSAM and ABDELMAJED DAHOUMANE in the Western District of Washington began on December 14, 1999. On that date, AHMED RESSAM, using false Canadian identification identifying himself as "Benni Antoine Noris, " entered the United States at Port Angeles, Washington, by ferryboat from Victoria, British Columbia, Canada. RESSAM was driving a car which he rented in the name of Benni Noris in Vancouver, BC. U.S. Customs Inspectors performed a secondary Customs examination of the car and requested that RESSAM get out of the vehicle, but initially he was uncooperative.

RESSAM filled out a CF 6059B Customs Baggage Dechiration Form which he presented to a U.S. Customs Inspector. The form listed his name as Benni Noris with a date of birth of May 9, 1971. In addition, RESSAM used a fraudulently obtained Canadian Passport #VE537438, in the name of Benni Antoine Noris, date of birth May 9, 1971; a counterfeit Quebec driver's license #PCC305CUW in the name of Benni Antoine Noris to enter the United States. He had additional false identification in his car, including a variety of credit cards and bank cards in the name of Benni Noris, and a counterfeit Quebec driver's license #NKDE71K08 in the name of Mario Roig, Date of Birth May 9, 1971.

U.S. Customs inspectors began to search the trunk of RESSAM's vehicle. Inspectors discovered concealed in the spare tire well the following, two lozenge bottles filled with primary explosives, one of which contained hexamethylene triperoxide diamine (HMTD) and the other of which contained cyclotrimethylene trinitramine (RDX); 10 plastic bags of approximately 118 pounds total of urea in fine white powder form, which is a fertilizer that, when nitrated, can be used as a fuel in explosives; 2 plastic bags of about 14 pounds total of a crystalline powder determined to be aluminum sulfate; two 22 ounce olive jars each filled approximately 3 quarters full of a golden brown liquid covered with a sawdust like substance, which liquid was determined to be an explosive, ethylene glycol dinitrate (EGDN). Also discovered with these chemicals were four timing devices, comprised of small black boxes which each contained a circuit board connected to a Casio watch and 9 volt battery connector. Tests later confirmed that the timing devices were operational. RESSAM's fingerprints and hair were found in some of the timing devices. The hair of another person was also found in the timing devices. Bomb experts concluded that the trunk contained all of the components necessary to construct powerful bombs, except for 9 volt batteries.

According to a Special Aged of the Bureau of Alcohol, Tobacco and Firearms, a NEXUS computer check revealed that AHMED RESSAM is not a licensee or permittee under the provisions of Chapter 40 of Title 18, of the United States Code permitted to transport, ship, or receive in interstate or foreign commerce any explosive materials.

RESSAM broke free from U.S. Customs inspectors while his trunk was being searched and ran from the area. Inspectors chased and caught him.

RESSAM was initially detained by the United States Border Patrol and the United States Customs Service until, with the assistance of the Royal Canadian Mounted Police, it was determined that BENNI NORIS was, in fact, AHMED RESSAM, date of birth 9 May 1967. RCMP identified him by comparing the fingerprints taken from NORIS to matching fingerprints of AHMED RESSAM, born in Algeria on May 9, 1967, taken previously by Canada Immigration when RESSAM applied for political asylum after he entered Canada via Mirabel Airport, Montreal, Quebec in February 1994 with an altered French passport in the name of Takar Medjadi.

On December 16, 1999, RCMP advised thar the driver's license in the name of Mario Roig is false. At the time of his arrest, AHMED RESSAM had a Canada-Wide Arrest Warrant; and a British Columbia-Wide Arrest Warrant for Theft Under $5,000.

Investigation by U.S Customs agents resulted in the discovery that RESSAM made a reservation at the Best Western Loyal Inn in Seattle, Washington, for December 14, 1999, for one night in the name of Benni Noris. The rental car was due to be turned in at the Seatac International Airport on December 15, 1999. A search of airline records disclosed that a "Benni Norris" had a reservation for a flight to London leaving from New York.

Subsequent investigation has revealed that RESSAM recently resided at the 2400 Motel in Vancouver, British Columbia from 19 November to 14 December 1999, while at the same time renting an apartment at 1250 duFort, Apartment 515, Montreal, Quebec.

While at the 2400 Motel, it is believed, based on the Canadian investigation, that RESSAM resided with ABDELMAJID DAHOUMANE.

On January 20, 2000, a grand jury in the Western District of Washington returned a superseding indictment charging RESSAM and DAHOUMANE with: 1. Conspiring to destroy or damage property with explosives transcending a national boundary; and 2. Placing an explosive in proximity to a ferry terminal. The grand jury retained the following additional counts against RESSAM on that date: 3. Presenting false identification documents to the United States; 4. Using a false name for admission to the United States; 5. Making a false statement to a United States Customs Officer; 6. Smuggling of explosives; 7. Transportation of explosives without proper license; 8. Possession of illegal explosives; and 9. Carrying Explosives during the commission of a felony offense. U.S. authorities understand from Canadian officials that RESSAM and DAHOUMANE were also charged in December of 1999 in Vancouver, Canada with related explosives charges. DAHOUMANE remains a fugitive.

[Six lines redacted; however this text was disclosed by unsealing of Document No. 54. See: http://cryptome.org/ar/ar-054.tif]

Telephone records and interviews suggest that RESSAM and DAHOUMANE were involved with a group working in Canada and the United States to support terrorist organizations, and that they may have connections with such people or groups in France. Specifically, David Courtailler, who is now in France and is known to have attended terrorist training camps in approximately 1998, may have information concerning RESSAM's and/or DAHOUMANE's presence at terrorist camps in Afghanistan or Pakistan.

THE OFFENSES

RESSAM and DAHOUMANE have been charged in the Western Dismct of Washington with violations as follows:

1. 18 United States Code §§ 2332b(a)(1)(B) and 2332b(c)(1)(E).

Conspiracy to Destroy or Damage Property Transcending a National Boundary

These sections prohibit the creation of a substantial risk of injury to others by conspiring to destroy property where the conspiracy employs a facility of foreign commerce, such as the ferry between. Victoria, Canada, and the Western District of Washington. RESSAM and DAHOUNLANE are each charged with this offense. The maximum term of imprisonment for this offense is 25 years.

12. 18 United Stated Code §§ 33 and 2.

Placing an Explosive in Proximity to a Terminal

Section 33 prohibits the placement of explosives in proximity to certain strctures used in commerce, such as the ferry terminal in the Western District of Washington where RESSAM arrived with explosives in the trunk of his car. DAHOUMANE is charged in this count for aiding and abetting RESSAM. The maximum term of imprisomment for this offense is 20 years.

3. 18 United States Code §§ 1028(a)(4) and (b)(3)(B).

False Identification Documents

This section prohibits the use of false documents to defraud the United States, such as the use of false Canadian identification by RESSAM to gain entry through U.S. Immigration to the Western District of Washington. The maximum term of imprisonment for this offense is 25 years if the offense was committed to facilitate an act of international terrorism.

4. 18 United States Code § 1546.

Use of a Fictitious Name for Admission

This section prohibits the evasion of the immigration laws by the use of a false name, such as any use by RESSAM of Benni Noris to gain entry to the United States. The maximum term of imprisonment for the offense is 25 years if the offense is committed to facilitate an act of international terrorism.

5. 18 United States Code § 1001

False Statement

This section prohibits knowingly and willfully making any materially false statement or representation in a matter within the jurisdiction of the executive branch of the United States government, such as a false statement to a U.S. Customs agent. RESSAM may have violated this section if he presented to U.S. Customs inspectors a Customs Declarations Form #6059B himself as Benni Antoine Noris (date of birth: May 9, 1971), knowing his true name was AHMED RESSAM (date of birth: May 9, 1967). The maximum term of imprisonment for this offense is 5 years.

6. 18 United States Code § 545.

Smuggling

This section prohibits the importation of certain materials, including the explosives that RESSAM is charged with having hidden in his trunk when he arrived in Port Angeles, Washington, on December 14, 1999. The maximum term of imprisonment for this offense is 5 years.

7. 18 United States Code §§ 842(a)(3)(A)and 844(a).

Transportation of Explosives

These sections prohibit the transportation without a license of certain materials, such as the explosives found in RESSAM's trunk on December 14, 1999. The maximum term of imprisonment for this offense is 10 years.

8. 26 United States Code §§ 5841, 5861(d), and 5871.

Possession of an Unregistered Weapon

These sections prohibit the possession of certain weapons that have not been properly registered, such as the explosives that U.S. agents fbund in the trunk of RESSAM's car on December 14, 1999. The maxinium term of imprisonment for this offense is 10 years

9. Title 18, United States Code, Section 844(h)(2).

Carrying an Explosive During the Commission of a Felony

This section provides an additional term of imprisonment for those convicted of possession of an explosive during the commission of another felony. In this case, if RESSAM possessed explosives when he made false statements to a U.S. Customs Inspector, he violated this section. The mandatory term of imprisonment for this offense is 10 years, which must be served consecutively to sentences for other offenses.

SUBJECTS OF THE NVESTIGATION AND PROSECUTION

AHMED RESSAM

Aliases: Benni A. Noris, Mario Roig, Mario Roigi, Marc Douri, Thar Medjadi, Tahar Dedjadi, Takar Medjadi, Reda, AHMED Resam, AHMED Ressan, Sami Beniza, Sammi Benizar, Le Marche Benni, Benni Import Export.

Date of Birth: May 9, 1967, May 9, 1971

Place of Birth. Algeria

Citizenship: Algerian

Race: Arabic

Sex: Male

Height: 5' 6"

Weight: 140 lbs.

Eyes: Brown

Hair: Black

Address: 1250 Rue DuFort, Apartment 515, Montreal, Quebec, Canada.

ABDELMAJID DAHOUMANE

Aliases: Abelmajid DAHOUMANE, Abdel Majid DAHOUMANE, ABDELMAJID Rougi, Abderahine Benyahia, "Le Rougi", Abdek Nahudl Adernahine Benyahia, Dahoumani Rougi.

Date of Birth: January 6, 1967

Place of Birth: Algeria

Citizenship: Algerian

Race: Arabic

Sex: Male

Height 5' 5" to 5' 8"

Weight 140-151 lbs

Eyes: Brown

Hair: Brown

Address: Unknown

ASSISTANCE REQUESTED

The United States Disrict Court for the Western District of Washington requests that the appropriate judicial authority designated to execute this letter rogatory do the following:

[11 lines redacted; however this text was disclosed by unsealing Document No. 54.]

Present photographic montages prepared by Special Agents of the United States Federal Bureau of Investigation containing photographs of AHMED RESSAM and ABDELMAJID DAHOUMANE to David Courtailler. If David Courtaffler picks RESSAM and/or DAHOUMANE from the photographic montages as individual(s) he recognizes, please question David Courtailler: 1) about how he knows each identified person, including whether the identified person has ever attended any training camp(s) in Afghanistan or Pakistan; and 2) such other questions as French authorities and any U.S. authorities in attendance agree are appropriate to further the U.S. investigation and prosecution.

Please allow U.S. prosecutors and F.B.I. agents from the Western District of Washington, to travel to France with the photographic montages and to be present for the presentation of the montages and the questioning.

Please accept the assurance of our highest esteem.

DATED this 3 day of 2000.

[Signature]

JOHN C. COUGHENOUR
Chief United States District Court Judge

PUBLIC RECORD 2

Vol. 3 Tab L
Docket #52

FEB 29 2000
AT SEATTLE
CLERK U.S. DISTRIC COURT
WESTERN DISTRICT OF WASHINGTON

REDACTED

Judge Coughenour

____________________________________

Judge Coughenour

COMES NOW the UNITED STATES OF AMERICA, by and through Katrina C. Pflaumer, United States Attorney for the Western District of Washington, and Steven C. Gonzalez, Assistant United States Attorney for said District and moves this Honorable Court for the issuance of a letter rogatory directed to the appropriate judicial authorities in France.¹ [Four lines redacted.] The letter rogatory (which is hereby incorporated into this motion), a memorandum of law, and a proposed order are attached. In light of the sensitive nature of this request, Assistant United States Attorney Steven C. Gonzalez further moves that this motion, the letter rogatory, the memorandum of law, and this Court's order be filed under seal. If the Court is inclined to deny the request that these filings be made under seal, the United States respectfully requests permission to present redacted versions of such documents for presentation to defense counsel.

____________________

1 The United States anticipates an additional letter rogatory request in the future to preserve and make available records and documentary evidence located in France pertaining to AHMED RESSAM's finances, dates of travel or residence, aliases, associates, criminal history, and his links to terrorist groups and support organizations. However, due to the immediate need for the xxxxxxxxxxxxxxxxxxxxxxxxxx as set forth in this request, the additional matters have not been incorporated in this request.

DATED this 29th day of Feburary, 2000

Respectfully submitted,

KATRINA C. PFLAUMER
United States Attorney

[Signature]

By: STEVEN C. GONZALEZ
Assistant United States Attorney

PUBLIC RECORD 3

Vol. 3 Tab N
Docket #58

MAR 02 2000
AT SEATTLE
CLERK U.S. DISTRIC COURT
WESTERN DISTRICT OF WASHINGTON

REDACTED

Judge Coughenour

____________________________________

Judge Coughenour

SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF GOVERNNMINT'S EX PARTE MOTION FOR ISSUANCE OF A LETTER ROGATORY

I. UNITED STATES DISTRICT COURTS HAVE THE POWER TO ISSUE EX PARTE REQUESTS FOR FOREIGN JUDICIAL ASSISTANCE

The power of federal courts to issue letters rogatory derives from 28 U.S.C. § 1781 and from the court's "inherent" authority. United States v. Reagan, 453 F.2d 165, 171-73 (6th Cir. 1971), cert. denied, 406 U.S. 946 (1972); United States v. Staples, 256 F.2d 290 21 (9th Cir. 1958); United States v. Strong, 608 F. Supp. 188, 192-94 (E.D. Pa. 1985); B & L Drilling Electric v. Totco, 87 F.R.D. 543, 545 (W.D. Okla. 1978).

Federal courts also possess power to execute letters rogatory at the request of foreign tribunals. 28 U.S.C. § 1782; In Re Request fbr Assistance from Ministry of Legal Aff-airs of 25 Trinidad and Tobago, 643 F. Supp. 464 (S.D. Fla. 1986), aff'd, 843 F.2d 1151 (11th Cir. 26 1988), cert. denied, 488 U.S. 1005 (1989); In Re Request From the Crown Prosecution Service of the United Kingdom, 8770 F.2d 686 (D.C Cir. 1989); In Re Request for Judicial Assistance from Seoul, 555 F 2d 720 (9th Cir 1977); In Re Letter Rogatory for Justice Court, 523) F.2d 5652 (6th Cir. 1975)

Evidence, including documents and the testimony of wimesses, may properly be sought by means of a request for foreign judicial assistance before or after formal charges have been made. United States v Reagan, 433 F.2d at 173 n.4; In Re Grand Jury 81-2, 550 F. Supp. 24, 29 (W.D. Mich. 1982); United States v. Strong, 608 F Supp. at 194.

Law enforcement investigations increasingly extend beyond national boundaries. This is especially true in cases involving alleged international terrorism, such as the RESSAM case. Law enforcement gathers information from other countries in a variety of ways. Generally speaking, when informal methods are not available, law enforcement must rely on Mutual Legal Assistance Treaties (MLATs), if in place, or formal requests by courts of the United States for judicial assistance from another nation.

Requests for judicial assistance, or "letters rogatory," are formal requests from a court of one nation to the judiciary of a foreign nation enlisting the assistance of the latter in obtaining evidence. Because the procedure can be complicated, it can delay criminal investigations and prosecutions. To facilitate the investigation and prosecution of crimes that transcend national boundaries, the United States has entered Mutual Legal Assistance Treaties (MLAT's) with certain nations, including Canada, that allow the Office of International Affairs (OIA) of the United States Department of Justice to make requests directly to foreign nations for law enforcement purposes. In fact, this Assistant United States Attorney has requested and received evidence from Canada in this case pursuant to an MLAT request sent to Canada by OIA.¹ All evidence received pursuant to that MLAT request that may be used at trial, including Brady information, if any, has been provided to RESSAM.

____________________

1 The Treaty with Canada an Mutual Legal Assistance in Criminal Matters, was signed at Quebec on March 18, 1985 (1985 WL 301941 (Treaty)), and entered into force January 24, 1990. In President Reagan's letter of transmittal to the Senate of the United States dated February 22, 1988, he wrote: "The Treaty is one of a series of modern mutual legal assistance treaties being negotiated by the United States in order to counter more effectively criminal activities. The Treaty should be an effective tool to prosecute a wide variety of modem criminals including members of drug cartel, "white-collar criminals," and terrorists." (Emphasis added.) The Treaty is self-executing and utilizes existing statutory authority.

The Treaty provides for a broad range of cooperation in criminal matters. Mutual assistance available under the treaty includes: "(1) the taking of testimony or statements of witnesses: (2) the orovision of documents, records and evidence. ... Article II provides for assistance in the investigation, prosecution and suppression of offences." The Treaty thereby provides for assistance at the investigative stage (such as grand jury proceedings), as well as after formal charges have been filed. Article XIII states, in pertinent part, that: "The Requested State may provide copies of any document, record or information in the possession of a government department or agency, but not publicly available, to the same extent and under the same conditions as would be available to its own law enforcement and judicial authorities."

The United States has an MLAT treaty in place with each of the followinag European nations: Italy, Spain, Netherlands, and Switzerland. Negotiations for additional MLAT's are underway. There is not currently an MLAT in place between the United States and France. Therefore, unlike with Canada, in order to obtain information relevant to the RESSAM case from France, a letter rogatory is required, and the execution by the Court of such a request for judicial assistance by a French court is based on comity between nations at peace. United States v. Zabady, 546 F. Supp. 35, 39 n.9 (M.D. Pa. 1992); The Signe, 37 F. Supp. 819, 920 (E.D. La. 1941).

It should not be necessary to reveal an investigation to the defendant simply because of the country in which a potential witness is located. In this instance, [two lines redacted] French authorities do not want the investigation of activities in France, including [phrase redacted] revealed unless it is necessary, i.e., it is relevant to RESSAM's case.

[Two lines redacted] A requirement to notify defense counsel could compromise an investigation or enganger a witness. [Six lines redacted]

The U.S. Attorney's Office for the Western District of Washinaton will have the same discovery obligations regarding [three lines redacted] such a request could not be done ex parte because a request for foreign judicial assistance seeking testimony to be preserved for trial is similar to and often implements an order for deposition under Rule 13, Fed. R. Crim. P., which is upon motion and notice to the parties. See United States v. Strong, 608 F. Supp. at 192-94 (approving post-indictment requests for judicial assistance in obtaining the deposition of a witness for trial on facts where the defendant had full opportunity to argue his case regarding the power of the court to issue such requests and the propriety of the request framed).

___________________

[Two-line footnote redacted.]

This office is not at this time seeking testimony to be preserved for trial. Therefore, the ex parte motion and related documents should be accepted under seal so that the FBI may conduct its investigation in the normal course, including matters in France.

II. THE PROCEDURE FOR THE ISSUANCE OF REQUESTS FOR FOREIGN JUDICIAL ASSISTANCE IS BY APPLICATION TO THE REQUESTING COURT AND IS CUSTOMARILY DONE EX PARTE AND SHOULD BE DONE UNDER SEAL

The Federal Rules of Criminal Procedure are silent as to the procedure for issuance of requests for judicial assistance. Case law from this Circuit, however, states that it is customary for letters rogatory applications from other nations to be made ex parte. In re Letters Rogatory from the Tokyo District, Tokyo, Japan, 539 F.2d 1216, 1219. (9th Cir. 1976).

A request for foreign judicial assistance seeking documents is similar to the issuance of a subpoena duces tecum, which a prosecutor may obtain either pre-indictment or post-indictment without notice to the adverse party. Rule 17, Fed R. Crim. P.; see also United States v Reagan, 453 F.2d at 173 (approving ex parte issuance of a request for foreign judicial assistance in obtaining records in a criminal investigation before the indictment had been returned).

A request for foreign judicial assistance in obtaining a statement from an individual who is potentially a trial witness also should be obtained ex parte because the statement sought is not testimony to be preserved for use at trial and, therefore, Rule 15, Fed. R. Crim. P., does not apply. This is so as to both pre-indictment and post-indictment statements and does not alter the government's Brady obligations. Furthermore, if the documents are unsealed, the potential witness and the media in France are likely to learn of the investigation before it is accomplished, which could seriously compromise the investigation and relations with France.

DATED this 1st day of March 2000.

Respectfully submitted,

KATRINA C. PFLAUMER
United States Attorney

[Signature]

By: STEVEN C. GONZALEZ
Assistant United States Attorney

PUBLIC RECORD 4

Vol. V. Tab L
Docket #100

REDACTED

Judge Coughenour

The United States District Court for the Western District of Washington presents its greetings to the judicial authorities in France and respectfully requests the assistance of the courts of France in connection with a criminal matter. The original letter rogatory, dated February 29, 2000, details the facts, offenses, and subjects of this investigation, which are incorporated herein by reference. The United States District Court for the Western District of Washington assures the courts of France and the appropriate judicial authority designated to execute this first supplemental request that the courts of the United States are authorized to assist foreign tribunals in the executions of letters rogatory for assistance in criminal matters.

SUPPLEMENTAL FACTS

Telephone records, interviews, and other sources suggest that AHMED RESSAM and ABDELMAJID DAHOUMANE were involved with a group working in Canada and the United States to support terrorist organizations, and that they have connections with people or groups in France.

[Nine lines redacted.]

In 1996, while in Montreal, FATEH KAMEL, a known terrorist, organized a cell, including RESSAM [phrase redacted] that committed theft and falsified identity documents, credit cards, and check books in support of radical Islamic extremists and terrorists and furnished those false travel and identity documents to [word redacted] and other activists. [Five lines redacted.] KAMEL has also been linked with MOKHTAR HOUARI who resided at 3479 Avenue Papineau, Apartment No. 31, Montreal, Quebec. In fact, KAMEL sold his business, ARTISANAT NORD SUD, to HOUARI.

KAJMEL is currently detained in Paris, France, for committing document fraud in furtherance of terrorist actions, including the Roubaix Affair and for acts of armed aggression perpetrated on French soil in the months of January through March, 1996. Additionally, he is implicated in the bombing of the Part Royal Metro. [Six lines redacted.] This gang is charged in France with placing an explosive device near the meeting place for the G7 Summit, wherein various heads of state were gathering, as well as aggravated attempted murder of law enforcement agents, murder, possessing and stockpiling arms, and attempted destruction using an explosive device. At least three members of the Gang de Roubaix are fugitives.

United States law enforcement believes that in 1998 RESSAM traveled to a terrorist training camp in Afghanistan sponsored by Osama Bin Laden after traveling through Frankfurt, Germany [two lines redacted.] He returned to Canada sometime in 1999.

In late 1999, RESSAM lived at 1250 duFort, Apartment No. 515, Montreal, Quebec, while also staying with DAHOUMANE at the 2400 Motel in Vancouver, B.C. In addition, a review of bank records, credit card applications and arrest records show that RESSAM listed 6301 Place de la Malicorne, Anjou, Quebec as one of his previous addresses. [Three lines redacted.]

RESSAM was arrested in Port Angeles, Washington, on or about December 14,1999, and ultimately was charged with various crimes relating to international terrorist activities. He was in possession of a false Quebec driver's license in the name of MARIO ROIG residing at 7934 Avenue Papineau, Montreal, Quebec, a business card for ARTISANAT NORD SUD, and a piece of paper containing the name "HOUARI," and a phone number. This strongly suggests a link among KAMEL, HOUARI and RESSAM.

[Seven lines redacted.]

United States authorities believe that RESSAM and DAHOUMANE were involved with a group working in Canada and the United States to support terrorist organizations and conduct terrorist acts, and that they have direct connecuons with associated people or groups in France. French authorities possess information relevant to the charges pending against RESSAM and DAHOUMANE in the Western District of Washington. DAHOUMANE remains a fugitive.

ASSISTANCE REQUESTED

The United States District Court for the Western District of Washington respectfully requests that the appropriate judicial authority [two lines redacted.] designated to execute this letter rogatory do the following:

DOCUMENTS NEEDED

Please provide a copy of true and complete documents requested below that relate to the following individuals:

a. [Redaction.]

b. [Redaction.]

c. [Redaction.]

d. [Redaction.]

e. [Redaction.]

f. [Redaction.]

g. [Redaction.]

h. [Redaction.]

i. [Redaction.]

j. [Redaction.]

k. [Redaction.]

l. [Redaction.]

m. [Redaction.]

n. [Redaction.]

o. [Redaction.]

Produce true and correct cocies of any aocuments which demonstrate involvement by any of the above listed individuals in Islamic terrorism relating to the subject matter of this request. including:

a. documents or records showing any acts characterized by violence against persons or property;

b. use of identity and travel documents, including identity and travel documents using aliases, immigration records, or funds provided by an individual or group supporting Islamic terrorist activities;

c. telephone records;

d. criminal police files or records;

e. criminal investigative files relating to the subject matter of this request;

f. summary of interviews, proces-verbals, statements, tape recordings or any other type of transcription of interviews of individuals who are aware or have knowledge of known terrorists or persons suspected of terrorist activity;

g. list of names of any individuals who are aware or have knowledge of persons, including those listed above, who have attended any schooling or training, especially in Pakistan or Afghanistan, relating to the use of explosives or radical Islamic indoctrination for the express purpose of destroying property or injuning persons;

h. any and all photographs or voice or video recordings of any of individuals identified in this request; and

i. any documents or records that demonstrate acts of aggression against persons or destruction of infrastructures in support of Islamic terrorism or to further militant Islamic extremism;

j. any and all documents that show material support, aid, or assistance to the Gang de Roubaix;

k. any and all documents which establish or may establish a link between the Gang de Roubaix and other known or suspected terrorists cells in France or elsewhere in furtherance of the armed aggressions perpetrated by the Gang de Roubaix from approximately January through March 1996, including the Roubaix Affair;

l. any and all documents which establish or may assist establish a direct link between RESSAM and any of the individuals listed above: and

m. any and all documents, items or materials seized as part of the execution of this supplemental letter rocatory or the original letter rogatory submitted by the United States to France on or about February 29 2000.

3. [Five lines redacted.]

4. [Three lines redacted.]

5. [Two lines redacted.]

6. Provide any and all documents, records, sales contracts, financial statements, business licenses, telephone records, witness statements or summaries that establish or may establish a direct link between RESSAM and KAMEL, including but not limited to any evidence of the sale or purchase of commercial enterprises.

7. [Three lines redacted.]

8. [Six lines redacted.]

9. [Three lines redacted.]

10. [Four lines redacted.]

11. [Four lines redacted.]

12.[Four lines redacted.]

13. [Three lines redacted.]

14. Provide a detailed description of all weapons seized from the safe-house of known members of the Gang de Roubaix on March 30, 1996.

15. Provide a true and correct copy of the criminal investigative file, post-blast investigative analysis of the explosive device found in the parted car, criminal record, and criminal court proceedings in connection with the prosecution of those individuals who participated in the ROUBAIX AFFAIR. Provide the name of those charged and the disposition of criminal proceedings against them.

16. [Three lines redacted.]

17. Have the custodian (or other person authorized by law) providing the records attach an attestation that the records are official records provided in his official capacity, or, in the event that the custodian (or other authorized person) does not have a formal certificate, stamp or seal of attestation, have him complete and attach an Attestation of Authenticity of Official Records (form enclosed).

18. Attach an apostille in accordance with the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents certifying the authenticity of the signature and official position of the custodian who provided the official records.

19. Transmit the records with attachments to this court through the Office of International Affairs, Criminal Division, United States Department of Justice, or as otherwise arranged by the appropriate authorities of France with the Office of International Affairs.

20. If the custodian (or other person authorized by law) ordered to provide official records falls, after a diligent search, to discover such records:

a. have that person, acting in his official capacity, provide an attestation to that effect, or, in the event that the person does not have a formal certificate, stamp or seal of attestation, have him complete and attach an Attestation of Absence of Official Records (form enclosed);

b. attach an apostille to the attestation; and

c. transmit the attestation with attachments to this court through the Office of International Affairs, Criminal Division, United States Department of Justice, or as otherwise arranged by the appropriate authorities of France with the Office of International Affairs.

NEED FOR PROCEDURE REQUESTED

The prosecutor needs execution of the attached Certificate of Authenticity of Official Records (or a comparable attestation that the records are official records provided in an official capacity) to receive the requested official records into evidence in accordance with the requirements of United States law. Ordinarily, foreign public records may be received into evidence if they purcort to be executed or attested in an official capacity by a person authorized by the laws of the foreign country to make the execution or attestation and are accompanied by an apostille pursuant to the Hague Convention. The evidentiary rules permitting this procedure (Rules 803(8) and 902(4), Federal Rules of Evidence) require an executed certificate or attestation.

Please accept this assurance of our highest esteem.

DATED this 2nd day of June, 2000.

[Signature]

JOHN C. COUGHENOUR
CHIEF UNITED STATES DITRICT COURT JUDGE

PUBLIC RECORD 5

Vol. V. Tab M
Docket #101

MAR 31 2000 JK
AT SEATTLE
CLERK U.S. DISTRIC COURT
WESTERN DISTRICT OF WASHINGTON

REDACTED

Judge Coughenour

MEMORANDUM OF LAW IN SUPPORT OF GOVERNMENTS EX PARTE
MOTION FOR ISSUANCE OF A FIRST SUPPLEMENTAL LETTER ROGATORY

[Balance of page redacted.]

________________________________________

Judge Coughenour

MEMORANDUM OF LAW IN SUPPORT OF GOVERNMENTS EX PARTE
MOTION FOR ISSUANCE OF A FIRST SUPPLEMENTAL LETTER ROGATORY

I. ISSUE REQUESTS FOR FOREIGN JUDICIAL ASSISTANCE

Requests for judicial assistance, or "letters rogatory," are formal requests from a court of one nation to the judiciary of a foreign nation enlisting the assistance of the latter in obtaining evidence. The execution of a request for judicial assistance by the foreign court is based on comity between nations at peace. United States v Zabady, 546 F. Supp. 35, 39 n.9 (M.D Pa. 1982); The Signe, 37 F. Supp. 819, 820 (E.D. La. 1941).

The power of federal courts to issue letters rogatory derives from 28 U S C. § 1781 and from the court's "inherent" authority. United States v Reagan, 453 F.2d 165, 171-73 (6th Cir. 1971), cert. denied 406 U.S 946 (1972), United States v Staples, 256 F.2d 290 (9th Cir. 1958); United States v. Strong, 608 F. Supp. 188,192-94 (E.D. Pa. 1985); B & L Drilling Electric v. Totco, 87 F R.D. 543, 545 (W D Okla. 1978).

Federal courts also possess power to execute letters rogatory at the request of foreign tribunals. 28 U S C § 1782, In Re Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobaco. 648 F Supp 464 (S D Fla 1986), aff'd, 848 F 2d 1151 (11th Cir 1988), cert. denied 488 U S 1005 (1989); In Re Request From the Crown Prosecution Service of the United Kingdom, 670 F 2d 686 (DC Cir 1989), In Re Request for Jugicial Assistance from Seoul, 555 F 2d 720 (9th Cir 1977), In Re Letter Rogatory for Justice Court,

[1 page redacted.]

II. THE PROCEDURE FOR THE ISSUANCE OF REQUESTS FOR FOREIGN JUDICIAL ASSISTANCE IS BY APPLICATION TO THE REQUESTING COURT

The Federal Rules of Criminal Procedure are silent as to the procedure for issuance of requests for judicial assistance. Case law from this Circuit, however, states that it is customary for letters rogatory applications from other nations to be made ex parte. In re Letters Rogatory from the Tokyo District, Tokyo, Japan, 539 F.2d 1216, 1219. (9th Cir. 1976).

A request for foreign judicial assistance seeking documents is similar to the issuance of a subpoena duces tecum, which a prosecutor may obtain either pre-indictment or post-indictment without notice to the adverse party. Rule 17, Fed R. Crim. P.; see also United States v Reagan, 453 F.2d at 173 (approving ex parte issuance of a request for foreign judicial assistance in obtaining records in a criminal investigation before the indictment had been returned).

A request for foreign judicial assistance in obtaining a statement from an individual who is potentially a trial witness also should be obtained ex parte because the statement sought is not testimony to be preserved for use at trial and, therefore, Rule 15, Fed. R. Crim. P., does not apply. This is so as to both pre-indictment and post-indictment statements and does not alter the government's Brady obligations. Furthermore, if the documents are unsealed, the potential witness and the media in France are likely to learn of the investigation before it is accomplished, which could seriously compromise the investigation and relations with France.

A request for foreign judicial assistance seeking testimony to be preserved for trial is similar to and often implements an order for deposition under Rule 15, Fed R. Crim. P., which is upon motion and notice to the parties. See United States v. Strong, 608 F Supp. at 192-94 (approving post-indictment requests for judicial assistance in obtaining the deposition of a witness for trial on facts where the defendant had full opportunity to argue his case regarding the power of the court to issue such requests and the propriety of the request framed).

DATED this 31st day of May,2000

Respectfully submitted,

KATRINA C PFLAUMER
United States Attorney

[Signature]

STEVEN C. GONZALEZ
Assistant United States Attorney

PUBLIC RECORD 6

Vol 7, Tab R
Docket # 171

Docket No. 324

FILED
FEB 08 2001 MR
AT SEATTLE
CLERK U.S. DISTRIC COURT
WESTERN DISTRICT OF WASHINGTON

REDACTED

Chief Judge Coughenour

________________________________________

Chief Judge Coughenour

UNITED STATES' MOTION TO TAKE A DEPOSITION
AND REQUEST FOR EXPEDITED CONSIDERATION

The United States of America, by and through Katrina C. Pfaumer, United States Attorney for the Western District of Washington, and Francis J. Diskin, Andrew R Hamilton, and Steven C. Gonzalez Assistant United States Attorneys for said District, moves the Court for an order granting this motion to take a deposition in Canada and requests expedited consideration.

1. In accordance with Fed R. Crim. P 15, the United States respectfully requests the Court to allow the Government to take the videotape and stenographic deposition of one person who resides in Canada. The United States further respectfully requests that the deposition be conducted in the same manner as the previous depositions that the Court authorized in this case, including the Court's attendance or the deposition in Vancouver, British Columbia, Canada, or via closed circuit television, to assist the Canadian Commissioner who will be appointed through the Mutual Legal Assistance Treaty¹ between the United States and Canada, and to make evidentiary rulings under the laws of the United States.

____________________

1 The Treaty with Canada for Mutual Legal Assistance in Criminal Matters. was signed at Quebec City on March 13, 1985 (1985 WL 301941 (Treaty)), and entered into force January 24, 1990. The treaty does not provide for the transportation or return of detainees across national boundaries for depositions.

2. This witness was not available to testify during the last two series of depositions in Canada. In fact. the Government only learned of this witness availability from Canadian authorities on February 7, 2001. This witness has refused to travel to the United States to testify at defendant's trial. The witness' testmiony is material and essential to presentation of the United States' case-in-chief . The witness is expected to testify as follows:

a. The witness is a friend and acquaintance of Ahmed Ressam. This witness will testify that prior to March, 1998, Ressam spoke to the witness of his desire to go to Afghanistan to attend training to become a Mujahidin. According to this witness, In March, 1998, Ressam went to Afghanistan from Canada to attend a military training camp.

b. Ressam told the witness that each believer must be willing to fight for Islam. According to this witness, Ressam told him that the followers of Islam must destroy the U.S. through Jihad. Ressam was influenced by the radical Islamic views of others, such an [word redacted] and [phrase redacted.]

c. According to the witness, Ressam returned to Canada through Asia because Ressam believed that it was easier to enter North America that way. After his retarn from the training camps, Ressam stayed with [word redacted] in Vancouver for approximately two months. Ressam also stayed with [word redacted] and his wife on some nights.

d. Ressain stated that he believes that the United States is responsible for the conflict in Bosnia.

e. Ressam holds anti-U.S. views and believes that the fight for Islam must be waged against U.S. interests overseas and within the U.S. borders.

f. In Vancouver, Ressam spent time with Abdelmajid Dahoumane.

g. In 1999, after his rerurn from a training camp in Afghanistan, Ressam told the witness that Ressam was at a training camp in Afghanistan when the United States bombed the camp to 1998. Ressam received special training at the camp in the manufacture of chemical explosives. Ressam was chosen for this training because of his inte1ligence and because he was at a strategic location in Canada due to his fraudulently obtained Canadian passport in a false name.

h. According to the witness, Dahoumane was smarter than Ressam, but between the two, Ressam was in charge. In 1999, Ressam and Dahoumane said that they were involved in top secret operations m Vancouver.

i. Ressam was involved in fraud and theft to provide financial and logistical support for Mujahidin and their conduct of armed aggression in the name of Islam. This support included providing false documents. Ressam and others used couriers to transport the money.

3. Trial is scheduled to commence on March 13, 2001, in Los Angeles, California. This witness is not within the subpoena power of the Court. The Court has no authority to compel the presence of Canadians or people residing in Canada at trial in the United States. Through Article XII of the Mutual Legal Assistance Treaty,² the United States can request the Canadian Government to compel Canadians and people residing in Canada by subpoena to attend depositions in Canada. The United states proposes holding the deposition in Vancouver, British Columbia, Canada, during the week of February 20, 2001. Given the shortness of time, we have already submitted such a request to the Central Authority in Canada, through the Office of International Affairs, Department of Justice. The request covers the new witness specifically mentioned in this motion.

____________________

2 Which provides, in peranent part, that: "A person requested to testify and produce documents, records or other articles in the Requested State may be compelled by subpoena or order to appear and testify and produce such documents, records and other articles, in accordance with the requirements of the law of the Requested State." Article XII, Treaty with Canada on Mutual Legal Assistance n Criminal Matters (1985 WL 301941 (Treaty)).

4. The United States Attorney has asked the United States Marshal's Office whether they are still unable to transport Ressam to the requested deposition in Canada The United States Marshals have advised us that they still cannot produce Ressam so that he can be present during the contemplated examination in Canada, for the same reasons that applied to the previous depositions in this case. Similarly, the authorities to Canada still do not have independent authority to detain Ressam in Canada for purposes of his presence at a deposition. In addition, were Ressam taken byv the Marshals to Canada, Ressam would likely be arrested in Canada where there is still an outstanding warrant for his arrest in connection with explosives charges filed against him in British Columbia, as well as two additional unrelated warrants for his arrest in Canada. If Ressam is arrested in Canada, extradition proceedings would be required for his return, which would likely not be accomplished until after his trial or trials and any sentences in Canada.

5. Defendant's Right of Confrontation:

A defendant's right to a face-to-face meeting with witnesses appearing before the trier of fact is not absolute. United States v. Medjuck, 156 F.3d 916, 919 (9th Cit. 1998), cert. denied, 527 U.S. 1006 (1999).

In Medjuck a drug prosecution which has striking similarities to the above-entitled case, the government had a number of Canadian witnesses who were not going to be available to attend trial in the United States. The Ninth Circuit agreed with the district court that these witnesses were beyond the subpoena power of the United States and that the utilization of Rule 15 depositions for these witnesses was appropriate. Id.

In addition, the district court found, and the Ninth Circuit agreed with that finding, that there was no mechanism in place to allow United States officials to transfer Medjuck, who was in custody at the time, over to Canadian authorities at the Canadian border and secure his return to the United States in a timely fashion after the Rule 15 depositions had been concluded. Id.

Compounding these problems was the fact that Medjuck was also wanted in Canada on drug smuggling charges stemming from the same conspiracy for which he was charged in the United States. The district court found, and the Ninth Circuit agreed with this determination, that the defendant would have been arrested and tried in Canada once he arrived there, and possibly not returned to the United States until his trial and resultma sentence had been concluded. Id.

The government set up an elaborate system to allow Medjuck to remain in the United States, to witness the depositions in Canada live by video-feed, and to participate with his attorneys in Canada by private telephone during each of the depositions. Because the government made diligent efforts to secure Medjuck's physical presence at the depositions, and because the government had employed procedures that were adequate to allow Medjuck to take an active role in the deposition proceedings, the Ninth Circuit ruled that the district court did not err in admitting the viaeotape testimony from chose depositions at trial. Medjuck at 920.

Essentially, the facts in this case are similar to those in Medjuck. The govenument in the above-entitled cause seeks to employ the same procedures utilized in the Medjuck case. It is clear that the defendant will be arrested on at least one warrant should he attempt to enter Canada. It is equally clear that the Canadian witnesses, either by refusing to agree to appear at trial in Los Angeles, or by virtue of serious health problems, are unavailable for trial for the purposes of Rule 15. With the use of close-circuit television and a private telephone line connecting defendant with his attorneys in the depositions, procedures will be implemented to allow the defendant to take an active role in these proceedings. See United States v. Gifford, 892 F.2d 263, 265 (3d Cir. 1989); and United States v. Salim, 855 F.2d 944, 950 (2d Cir. 1989). Accordingly, it is requested that the government's motion to permit Rule 15 depositions in Canada be granted.

As in the prior depositions, the Government will ensure the availability of the same location at the Seatac Detention Center where Ressam, an interpreter, and a member of the defense can participate in the depositions by video conferencing equipment and a private telephone line. As in the prior depositions, the room will be neutral and Ressam will be allowed to wear civilian clothing so that Ressam's detention will not be broadcast on the videotape of the proceedings.

In the interests of justice, the United States requests permission to take the videotape and stenographic depositions of this witness in Vancouver, British Columbia during the week of February 20, 2001. See United States v. Medjuck, 156 F. 3d 916, (9dCir. 1998), cert. denied, 119 S.Ct. 2343 (U.S. June 14, 1999) (No. 98-1841); United States v. Dillman, 15 F.3d 384, 388-390 (5th Cir.), cert. denied, 513 U.S. 866 (1994); and United States v. Drogoul, 1 F.3d 1546 (11th Cir. 1993). All counsel will be notified in advance of the specific time, date and location of the depositions.

8. The United States requests that the Court determine whether Ressam, who has appointed counsel, is unable to bear the expenses of taking the depositions under Fed. R. Crim. P. 15(c).

9. If the Court grants this motion, and Canada grants the Mutual Legal Assistance Request for the deposition, the government intends to provide the name of the witness and Jenks material to defense counsel in a timely manner prior to the deposition. Canada has expressed a concern regarding the premature disclosure of the identity of the witness as well because of witness safety and privacy concerns.

10. Documents Filed Under Seal: The Court will note that the government's motion, supporting affidavits, and proposed order, have all been filed under seal. These documents, presented in support of the government's request for Rule 15 depositions, as well as the actual Rule 15 deposition that will be videotaped in Canada should this order be granted, are not subject to a right of access by the public and are traditionally carried out in secret.

As a general rule of law, there is a presumption that the public and the press have a right of access, both under the common law and the First Amendment, to pretrial criminal proceedings and documents. Associated Press v. United States Dist. Court, 705 F.2d 1143, 1145 (9th Cir. 1983).

The courts have noted two considerations relevant to whether a right of access extends to a particular proceeding or document:

a. Whether the place and process has historically been open because a tradition of accessibility implies the favorable judgment of experience, and

b. Whether public access plays a particularly significant positive role in the actual functioning of the proceeding. Seattle Times Co. v. U.S. Dist. Court for the Western Dist. of Washington, 845 F.2d 1513, 1516 (9th Cir. 1988).

There is no right of access to proceedings or documents which have traditionally been kept secret for important policy reasons. Re Special Grand Jury (For Anchorage, Alaska), 674 F.2d 778, 781 (9th Cir. 1987).

For example, the public clearly has no right of access to grand jury proceedings or materials because such proceedings and materials have traditionally been kept secret and public access does not play a significant role in the grand jury's function. Time-Mirror Co v. Untied States, 873 F.2d 1210, 1213 (9th Cir. 1989). Similarly, and for the same reasons, the issuance of search warrants has traditionally been carried out in secret. Franks v. Delaware, 438 U.S. 154, 169 (1977).

The public tight of access under the common law and the First Amendment does not extend to deposition testimony taken under Rule 15 of the Federal Rules of Criminal Procedure. Rule 15 depositions are taken from "prospective" witnesses at a time when the party seeking the depositions has not yet committed to introducing them at trial, and the trial judge has not yet ruled on the admissibility of the testimony.

"Potential" evidence is not ordinarily within the scope of public access. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984). Until formally admitted into the record at trial, Rule 15 depositions and supporting documentation are not subject to access by the public and the press. Associated Press V. Ladd, 162 F.3d 503, 512 (7th Cir. 1998). See also United States v. McDougal, 105 F.3d 651, 659 (8th Cir. 1996), cert. denied, 522 U.S. 809 (1997).

Accordingly, these documents -- and the respective Rule 15 deposition that will take place in Canada upon the granting of this motion -- are secret proceedings and materials not accessible by the public. It is for this reason that these pleadings have been filed under seal.

11. Since the trial date is fast approaching, and the requested deposition will involve international travel and making arrangements with foreign officials, interpreters, and court reporters, the United States requests expedited consideration of this motion.

DATED this 8th day of February, 2001.

Respectfufly submitted,

KATRINA C. PFLAUMER
United States Attorney

[Signature]

ANDREW R. HAMILTON
Assistant United States Attorney

PUBLIC RECORD 7

Vol. 7 Tab U
Docket #174

CHIEF JUDGE JOHN C. GOUCHENOUR

THIS DOCUMENT FILED UNDER SEAL

PURSUANT TO COURT ORDER

DATED DECEMBER 21, 1000

______________________________

CHIEF JUDGE JOHN C. GOUCHENOUR

I. INTRODUCTION

NOW COMES the defendant Ahmed Ressam, by his attorneys Federal Public Defender Thomas W. Hillier, II, Assistant Federal Public Defender Michael Filipovic, and Assistant Federal Public Defender Jo Ann Oliver, and hereby submit the following reply to the government's motion for a deposition of an unidentified witness.¹

____________________

1 Along with this reply, the defendant has separately filed a motion to compel the government to make an MLAT request of Canada for specific information directly related to the credibility of this unidentified witness.

The government's 11th hour request to depose in Canada an unnamed witness, in secret, raises an array of questions and problems, some of constitutional significance. We vigorously object to the government's request. In support of this objection the defendant respectfully requests that the Court consider the memorandum of law previously filed on the topic of foreign depositions. See Docket No. 106 In addition to the previous objections, a foreign deposition of this unidentified witness should not be granted for the following specific reasons.

II. THE GOVERNMENT'S SHOWING OF "UNAVAILABILITY" IS INSUFFICIENT

The exceptional circumstances required for foreign depositions under Fed. R. 10 Crim. P. 15 include a strong likelihood that the witness will be unavailable to testify at trial. The government's motion asserts that its "witness has refused to travel to the United States to testify at the defendant's trial." (Government's Brief at p. 2). This bald assertion is insufficient, especially when considered in conjunction with the summary of the witness's anticipated testimony.

The goverment's summary of the witness's likely testimony clearly suggests that the witness has a contractual relationship, formal or informal, with Canadian law enforcement or that the witness is receiving some other sort of benefit from the Canadian government in exchange for his cooperation. The benefit may be pay, immunity from prosecution, sentencing leniency, favorable immigration consideration, or some other form of compensation unknown to the defense. It is inconceivable that the witness would be offering testimony as detailed in the government's motion absent such consideration. The government's proffer describes a person who has penetrated the secrecy of the alleged conspiracy and who has provided information over a protracted period of time. The summary includes all the hallmarks of a paid operative or cooperating individual. If the witness is working for the Canadian government, or receiving some sort of consideration for his cooperation, the Canadian government can insist upon his presence at the Los Angeles trial, and the United States government can facilitate has travel to the United States and his return to Canada. Indeed, the United States government should be forceful in insisting upon such cooperation by the Canadian government just as the United States government requires full cooperation and presence at trial from cooperating individuals receiving benefit for their testimony.

Given the nature of the testimony of this witness, the likelihood that the witness is receiving some benefit from either the United States government or some other government, and the timing of this request, the Court should hold the government to a high standard before granting this deposition request. As the Ninth Circuit has stated:

A witness is not 'unavailable' [to testify at trial] unless the prosecutor makes a good faith effort to obtain the witness's presence. The lengths to which a prosecutor must go to establish good faith is a question of reasonableness.

Christian v. Rhode, 41 F.3d 461, 467 (9th Cir. 1994) quoting United States v. Winn, 767 F.2d 527, 530 (9th Cir. 1985). "Good faith" and "reasonableness" are terms which require a fact intensive, case by case analysis. Id. Moreover, as the Supreme Court has recognized, the good faith effort required of the prosecution means that "if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation." Ohio v. United States, 448 U.S. 56, 74 (1980).

The government should be compelled to provide details concerning the relationship between the witness and the Canadian government and/or the United States government before ruling that the wimess is "unavailable" for purposes of Rule 15. We request that the government be ordered to provide all information and documents concerning that relationship including cooperation agreements to the Court so that it can make the necessary fact intensive analysis required by the Confrontation Clause.

III. THE QUESTION OF TIMING

The timing of the government's request is troubling. Two sets of time-consuming and costly foreign depositions have been completed. The government asserts that "this witness was not available to testify during the last two series of depositions in Canada." (Government's Brief at p. 2). Curiously, the government then asserts that it "only learned of this witness's availability from Canadian authorities on February 7, 2001." (Government's Brief p. 2). It is difficult to reconcile these two statements unless one concludes that the government has known of the witness for an unspecified period of time and has deliberately chosen to withhold information concerning the witness until the eve of trial. This inescapable conclusion prompts a number of questions. Why was the witness unavailable during the prior depositions but available now? Why were the Court and the defense left in the dark concerning this witness for the entire year of pretrial preparation? What effort was made by the government to secure the witness's presence for deposition before this ill-timed request? We believe the Court should require answers and should compel the government to produce all communications between it and the Canadians concerning this witness and his availability for testimony. In this respect, it is noteworthy that the government has refused to provide the defense with a copy of its MLAT request concerning the witness.

The timing of the disclosure creates serious logistic difficulties. We are just weeks away from trial and working full time to prepare. This preparation includes the additional difficulties that attach to trial in a different venue. The time necessary for preparation and travel to Canada for another deposition is substantial and difficult to set aside at this late date.

The timing of disclosure creates concerns of a constitutional dimension. The summary of the witness's testimony is dramatic but noticeably void of detail. The witness alleges knowledge based, presumably, upon conversations with Mr. Ressam and others. His statement requires investigation. Investigation requires time and details in order to determine  whether the witness is telling the truth and was in a position to know what is summarized in the prosecution's motion. The need for detail and time to investigate is manifest in the only paragraph of the government's proffer that provides investigative leads. The witness apparently states that Mr. Ressam stayed with [word redacted] Vancouver for approximately two months and also stayed with [word redacted] some nights. This information is untrue. It is highly unlikely that the defense will be able to secure the presence of Messrs. [phrase redacted] trial or for depositions at this late date to contradict this witness's testimony. Presumably, the defense must rely upon the government, the same government that has orchestrated this untimely disclosure to compel the Canadian government to require presence of Messrs. [phrase redacted] the hoped for deposition.² Even more importantly, the timing of this disclosure and request for a deposition preempts entirely the ability of the defense to meaningfully investigate the background of the witness and the accuracy of the information he provides. We can expect no cooperation from the Canadians and, upon discovering impeaching information, we would have no practical process available for introducing such evidence or information at trial.

____________________

2 For the defense to obtain depositions to contradict this wimess it must ask for assistance pursuantt to letters rogatory from the trial court to the appropriate court in the requested country. As recognized in the United States Attorneys Manuel §§ 9-13.521(B) this process can take "as much as a year or more." The defense must then rely on the government to make the MLAT request for defense depositions on the defendant's behalf. See, e.g., United States v. Des Marteau, 162 F.R.D. 364, 372 n.5 (M.D. Fla. 1995).

The timing of the government's request for this deposition is suspect and suggests at least the appearance of a design to frustrate the defendant's constitutional right to effectively prepare for trial. By choosing to delay information concerning this witness until this point, the government has created practical and constitutional problems which, we think, should weigh against granting the requested deposition.

IV. THE QUESTION OF SECRECY

The government requests that the deposition, if allowed, be taken in secret. We firmly oppose this request. The government advances no substantive reason for the secrecy and, absent agreement by both parties and a compelling reason, the request should be denied. The government has no right to insist upon a secret proceeding. In this regard, we note that depositions taken in Montreal were taken publicly and with the video presence of Mr. Ressam. Those video depositions proceeded in an orderly fashion. Further, it is our understanding and belief that the proceedings in Montreal were conducted in public because Canadian law requires the same.

The Sixth Amendment affords Dft. Ressam the right to a public trial. When compelling circumstances allow the taking of a deposition, Fed. R. Crim. P. 15(d) contemplates the taking of the deposition under circumstances "such as would be allowed the trial itself." Compelling a witness to testify publicly is an essential component of Mr. Ressam's Sixth Amendment right. If a deposition is allowed, the witness should be required to testify under circumstances that simulate, as much as possible, "trial itself."

We also note that by Local Rule in this district, the media is entitled to notice of any motion for an order affecting its right to full pretrial coverage of pending or impending criminal proceedings. See Local Rule CR 53(d). The goverrunent's motion does not include inforation demonstrating compliance with this Rule.

Consistent with Mr. Ressam's right to a public trial, we oppose the government's request for secret proceedings.

V. CONCERNS RELATED TO THE DEFENDANT'S RIGHT TO CONFRONTATION

The primary reason for the law's normal antipathy toward depositions in criminal cases are the fact finders usual inability to observe the demeanor of deposition witnesses, and the threat that poses to the defendant's Sixth Amendment confrontation rights.

United States v. Drougal, 1F.3d 1546, 1552 (11th Cir. 1993). Unlike the witnesses who testified during the two previous sets of depositions, this witness claims to possess incriminating information coming directly from Mr. Ressam. His claim, we submit, subjects the witness to heightened Confrontation Clause scrutiny.

In balancing the Confrontation Clause issues against the government's interest, the 10 11 defendant's interest ia confrontation may be diminished when the witnesses are everyday citizens employed in various occupations who just happen to have relevant testimony for the criminal prosecution. For example, laundry workers, hotel desk clerks, banking employees, and the rental car employees who testified in this case are generally not the type of witnesses for which there would be a substantial concern about their general integrity or honesty.

This is not the case with the present witness proffered by the government. The government's Proffer raises a number of "red flags" concerning the reliability of this witness.

He alleges that Mr. Ressam made particular statements to him. He should be required to testify in the presence of Ahmed Ressam, in order that Mr. Ressam be allowed to confront his accuser face-to-face. The jury too should have the benefit of observing this witness in person and without the filter of teleconferencing. Our experience with several witnesses during Montreal depositions emphasizes this point Mr. Ressam's right to an impartial consideration of the witness's testimony is impaired by video conferencing. Under these circumstances the government should be required to make an exceptionally strong showing concerning the witness's unavailability for trial as well as the government's inability to require the witness's presence at trial.

V. CONCLUSION

We oppose the taking of further depositions in this case and oppose the government's request that proceedings be held in secret. The timing of the government's request is suspect and prejudices the defense ability to investigate and rebut materially false information. Further, the government's showing of "unavailability" is insufficient especially because the substance of the witness's testimony strongly suggests that he is a government operative, who, by virtue of that association, can be compelled by the Canadians to appear at trial in the United States. For all these reasons, we respectfully urge the Court to deny the government's request.

DATED this 13th day of February, 2001.

Respectfully submitted,

Thomas W Hillier, II
Federal Public Defender
Attorney for Ahmed Ressam

Michael Filipovic
Assistant Federal Public Defender
Attorney for Ahmed Ressam

Jo Ann Oliver
Assistant Federal Public Defender
Attorney for Ahmed Ressam

[Certificate of Service omitted.]

Original file in multi-image TIFF format: http://cryptome.org/ar/ar-328.tif (143KB)

[3 pages.]

Docket No. 328

FILED
NOV 29 2001
AT SEATTLE
CLERK U.S. DISTRIC COURT
WESTERN DISTRICT OF WASHINGTON

On October 26, 2001, this Court held a hearing in response to the Seattle Times' request to unseal documents in this case (Dkt. No. 315). On October 25, 2001, the United States filed a response in which it indicated with respect to each requested document that it had either "No Objection," "No Objection (with redactions)" or "Objections" to unsealing the document (Dkt. No. 317). A court order unsealed those documents to which the United States expressed no objection on October 26, 2001 (Dkt. No. 319). This order was subsequently amended twice to permit further review of certain documents by the United States (Dkt. Nos. 320, 323).

The United States was given until November 5, 2001, to respond to the Court's inquiry regarding the need to keep certain documents, or parts of these documents, under seal. By the end of October 26, 2001, the United States filed a Supplemental Response regarding documents it believed should be unsealed in redacted form (Dkt. No. 322). The seven documents, as redacted by the United States, were made immediately available to the public. This Order satisfies the Court's obligation to review the documents and determine whether the redactions made by the Government comply with the law governing the closure of pleadings.

A. Legal Analysis

The press and public have a presumed First Amendment and independent common law right of access to criminal proceedings and documents filed in those proceedings. See CBS, Inc. v. United States Dist. Court, 765 F.2d 823, 825 (9th Cir. 1985). This right extends to both pre-trial, trial, and post-trial proceedings. See id.

Under the common law right, if the press makes a threshold showing of a legitimate need for disclosure of sealed documents, the court must balance this asserted need against the asserted grounds for confidentiality. See United States v. Kaczypski, 154 F.3d 930, 931 (9th Cir. 1998). Under the First Amendment, however, a three-part substantive test governs the denial of access to criminal proceedings and documents. To order closure, the court must find:

(1) closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest.

Oregonian Publ'g Co. v. U.S. Dist. Court, 920 F.2d 1462, 1466 (9th Cir. 1990) (citing Press-Enter. Co. v. Superior Court, 478 U.S. 1, 13-14 (1986)); see also Seattle Times Co. v. U.S. Dist. Court, 845 F.2d 1513, 1517-18 (9th Cir. 1988). The party seeking closure bears the burden of presenting facts to support closure and demonstrating that available alternatives will not protect its rights. See Oregonian Publ'g, 920 F.2d at 1467 (citing United States v. Brooklier, 685 F.2d 1162, 1167, 1169 (9th Cir. 1982)), In comparing the common law right with the First Amendment right to access documents, the Ninth Circuit has recognized that the latter requires a more substantial showing by the party seeking closure. See Kaczynski,154 F.3d at 932-33 (Reinhardt, J. concurring). Thus, if this Court finds that the Government's redactions survive First Amendment scrutiny, they necessarily past muster under the common law balancing analysis.

Any legitimate compelling interest may be asserted as a grounds for closure, and courts have previously held those interests to include the defendant's Sixth Amendment right to a fair trial, private property interests, and privacy of prospective jurors. See CBS, 765 F.2d at 825 (citations omitted). Guiding the Court's analysis of the asserted compelling interest is the concern that "closure is essential to preserve higher values and is narrowly tailored to serve that interest." Id. Further, the court must articulate the compelling interest along with findings sufficiently specific for a reviewing court to determine the propriety of the closure order. See id. Courts have expressed skepticism at the government's claim of an interest in law enforcement as the sole support for a closure order, but the Ninth Circuit has "recognize[d] that information relating to cooperating witnesses and criminal investigations should be kept confidential in some cases." Id. at 825-26.

B. Redacted Documents in the Present Case

The following seven documents are at issue:

Document	Docket No.	Date Filed
1. Letter Rogatory	52	2/29/2000
2. Ex Parte Motion for Issuance of Letter Rogatory	52	2/29/2000
3. Supplemental Memorandum of Law in Support of Government's Ex Parte Motion for Issuance of a Letter Rogatory	58	3/02/2000
4. First Supplemental Letter Rogatory	100 & 102	5/31/2000
5. Memorandum of Law in Support of Government's Ex Parte Motion for Issuance of a First Supplemental Letter Rogatory	101	5/31/2000
6. U.S. Motion to Take a Deposition and Request for Expedited Consideration	171	2/8/2001
7. Defendant's Reply to Government's Motion to Take a Deposition of an Unidentified Witness	174	2/13/2001

The Government asserts one primary reason for the redactions it has made to these seven documents. All of the redacted material relates to information that is the subject of ongoing investigations being carried out in a variety of jurisdictions and by a number of different national authorities. The Government contends that the redactions are necessary to avoid jeopardizing the investigations or alerting the potential targets of these investigations. Upon reviewing the Government's justifications, the Court finds that the redactions serve the compelling interest of protecting ongoing criminal investigations that would otherwise be jeopardized by the publication of this information in the press. Considering the events of September 11, 2001, the documents involved in the prosecution and conviction of a terrorist take on great importance with respect to the criminal investigations at issue, and to national security and foreign policy interests as well.

While most of the case law on this issue involves the complete closure of court documents, the seven pleadings addressed in this order are only partially redacted. In fact, only Docket No. 101 has a complete page redacted. The Court finds that the redactions recommended by the Government are precisely targeted at information which, if released to the public, would likely harm ongoing criminal investigations. In a situation such as the present case, where revealing any of the information protected by narrowly confined redactions would be likely to jeopardize a recognized compelling interest, the Government has met its burden to support closure (or redaction) and demonstrate the non-existence of less restrictive alternatives, see Oregonian Publ'g, 920 F.2d at 1467.

It is hereby ORDERED that the seven documents (Dkt. Nos. 52, 58, 100, 101, 102, 171 and 174) submitted by the United States in its Supplemental Response (Dkt. No. 322) shall remain available to the public only as redacted by the United States.

SO ORDERED this 29 day of November, 2001.

[Signature]

CHIEF UNITED STATES DISTRICT JUDGE

[List of parties sent order omitted.]

Original document in multi-image TFF format: http://cryptome.org/ar/ar-330.tif (111KB)

[5 pages.]

Docket No. 330

FILED
NOV 29 2001
AT SEATTLE
CLERK U.S. DISTRIC COURT
WESTERN DISTRICT OF WASHINGTON

This Order is the Court's second review of documents following the Seattle Times' request that the pleadings in this action be unsealed pursuant to the First Amendment right of access to court documents. The Court's previous Order (Dkt. No. 328) only addressed seven documents that the United States agreed to unseal in redacted form. Here, the United States requests the Court to keep the following documents sealed in their entirety (Dkt. No. 322):

Document		Docket No.		Date Filed
Ex Parte Motion for Order by USA		309		07/06/2000
2. Government's Memorandum in Support of Motion for Order by USA		310		07/06/2000
3. Lodged Order re: Motion for Order by Government		-		7/06/2000
4. Proposed Document		-		7/06/2000
5. Minute Order re: Motion		311		07/10/2000
6. Government's Motion for Order		312		07/11/2000
7. Signed Order re: Motion for Order by Government		313		07/13/2000

Except for the Minute Order, the actual titles of these documents differ from the titles in the list above in order to protect sensitive information.

Legal Analysis

The law governing the closure of court documents has not changed since the Court's Order of November 6, 2001, so a detailed recitation is not necessary here. In short, closure is appropriate if the United States shows that it serves a compelling interest and is narrowly tailored to protect that interest. See Oregonian Publ'g. Co. v. U.S. Dist. Court, 920 F.2d 1462, 1466 (9th Cir, 1990) (citing Press-Enter. Co. v. Superior Court, 478 U.S. 1, 13-14 (1986)); see also Seattle Times Co. v. U.S. Dist. Court, 845 F.2d 1513, 1517-18 (9th Cir. 1988). The Ninth Circuit has recognized that the need to protect ongoing criminal investigations is a compelling interest. See CBS, Inc. v. United States Dist. Court, 765 F.2d 823, 825-26 (9th Cir. 1985). National security issues can also supply the requisite compelling interest. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 598 n.24 (1980) (Brennan, J. and Marshall, J., concurring).

Application to the Seven Documents

The United States contends that the documents should remain sealed because they pertain to an ongoing investigation of a party charged but not tried in this district as well as to other parties that have been charged in other districts. In addition, the documents relate to the assistance of a foreign government which has requested its cooperation with United States law enforcement to remain secret. If the documents were released to the public, it would jeopardize the future assistance by this government and compromise ongoing criminal investigations. Upon reviewing the Government's justifications, the Court finds that the redactions serve the compelling interest of protecting ongoing criminal investigations that would otherwise be jeopardized by the publication of this information in the press. Considering the events of September 11, 2001, the documents involved in the prosecution and conviction of a terrorist take on great importance with respect to the criminal investigations at issue as well as to national security and foreign policy concerns.

In contrast to the documents addressed in the November 6, 2001 Order, the Government has requested the complete closure of the documents at issue here. All seven relate to the assistance of the foreign government and detail the nature of that assistance and the cooperative relationship between the United States' and foreign government's law enforcement. As a result, the Court finds that redaction would not be sufficient to protect the extremely sensitive information contained in the documents. Even though certain innocuous words and phrases might not convey the full substantive content of the documents, the Court is concerned that redacted versions would likely reveal the nature of the assistance and jeopardize the future cooperation of the foreign government involved. For these reasons, complete closure of the documents is the only means of protecting the compelling interest at stake in these pleadings.

The Court hereby ORDERS that the seven documents (Dkt Nos. 309 through 313 and the two documents lodged on 7/6/00) shall remain sealed.

SO ORDERED this 29 day of November, 2001

[Signature]

CHIEF UNITED STATES DISTRICT JUDGE

________________________________

United States District Court
for the
Western District of Washington
November 30, 2001

* * MAILING CERTIFICATE OF CLERK * *

Re: 2:99-cr-00666

True and correct copies of the attached were mailed by the clerk to the following:

Andrew R Hamilton, Esq.
U S ATTORNEY'S OFFICE
STE 5100
601 UNION ST
SEATTLE, WA 98101-3903
FAX 553-0755

F. Jerome Diskin, Esq.
U S ATTORNEY'S OFFICE
STE 5100
601 UNION ST
SEATTLE, WA 98101-3903
FAX 553-4440

Thomas W. Hillier II, Esq.
FEDERAL PUBLIC DEFENDER'S OFFICE
STE 1100
1111 3RD AVE
SEATTLE, WA 98101-3207
FAX 553-0120

Michael Filipovic, Esq.
FEDERAL PUBLIC DEFENDER'S OFFICE
STE 1100
1111 3RD AVE
SEATTLE, WA 98101-3207
FAX 553-0120

Jo Ann Oliver, Esq.
FEDERAL PUBLIC DEFENDER'S OFFICE
STE 1100
1111 3RD AVE
SEATTLE, WA 98101-3207
FAX 553-0120

Michele Earl Hubbard, Esq.
DAVIS WRIGHT TREMAINE LLP STE 2600
1501 4TH AVE
SEATTLE, WA 98101-1688
FAX 628-7699

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