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UNITED STATES v. REZAQ

September 20, 1995

UNITED STATES OF AMERICA,
v.
OMAR MOHAMMED ALI REZAQ, a/k/a OMAR MARZOUKI, a/k/a OMAR AMR, Defendant.



The opinion of the court was delivered by: LAMBERTH

 The defendant has filed a number of motions to dismiss the indictment in this case, three of which are dealt with in this memorandum opinion. Specifically, defendant asks this court to dismiss the indictment on the grounds that the United States' prosecution of the defendant for aircraft piracy violates the Double Jeopardy Clause. Defendant also moves for dismissal on the grounds that the government's prosecution violates the 30 day time limit imposed by the Speedy Trial Act. Finally, defendant seeks dismissal for lack of jurisdiction over the hijacking offense.

 Upon careful consideration of the filings and arguments of counsel, the court shall grant in part and deny in part the United States' motion to reconsider the Discovery Order and Protective Order. The court agrees with the government that defendant's double jeopardy defense fails as a matter of law. Accordingly, for the reasons set forth below, the court shall grant the government's motion to reconsider the Discovery Order so as to deny defendant's motion to compel production of information pertaining to defendant's double jeopardy defense. Furthermore, in light of the court's finding that defendant's double jeopardy defense fails as a matter of law, the court shall deny defendant's motion to dismiss on double jeopardy grounds. The court also concurs with the government's position that defendant's Speedy Trial Act defense fails as a matter of law. Accordingly, the court shall grant the government's motion to reconsider the Discovery Order so as to deny defendant's motion to compel production of information pertaining to defendant's Speedy Trial Act defense. Furthermore, in light of the court's finding that defendant's Speedy Trial Act defense fails as a matter of law, the court shall deny defendant's motion to dismiss for violation of the Speedy Trial Act. The government's motion is also granted with respect to the court's prohibition on seeking leave to file on ex parte submissions. The court shall modify the Discovery Order so as to permit the government, under certain circumstances, to seek leave to file in camera submissions ex parte. The court shall also grant the government's motion to modify the Protective Order to require defendant to return of all classified documents produced during discovery that the court determines are not "material" to defendant's defenses following adversarial treatment of the issues. The court, however, declines to reconsider other aspects of the Discovery Order and the Protective Order at this time. Finally, the court shall deny defendant's motion to dismiss for lack of jurisdiction.

 I.

 BACKGROUND

 Defendant Omar Mohammed Ali Rezaq has been indicted on one count of aircraft piracy for allegedly hijacking Egyptair Flight Number 648 on November 23, 1985. According to the government, Rezaq and two other men hijacked Flight 648 while en route from Athens, Greece to Cairo, Egypt, and forced the pilots to land the airplane at Hal Luga Airport in Malta. Shortly thereafter, the hijackers allegedly singled out for execution the American and Israeli passengers, and positioned each of them in front of the opened door of the aircraft. One by one, the hijackers allegedly shot each of these passengers from behind at point blank range. The passengers were then thrown onto the tarmac below. Two of these passengers, one of whom was an American citizen, died from their wounds.

 The incident ended when an Egyptian commando unit stormed the plane to rescue the remaining passengers and apprehend the hijackers. In the ensuing melee, 57 passengers were killed. Rezaq was captured and turned over to Maltese authorities, whereupon he was tried and convicted under Maltese law of murder, attempted murder, and the unlawful taking of hostages. Rezaq was sentenced to twenty-five years incarceration in a Maltese prison, but, for reasons that remain unclear, he was released in 1993 after having served only seven years of the sentence and permitted to board an airplane bound for the Sudan.

 Rezaq's flight itinerary was to carry him to the Sudan via Ghana, Nigeria, and Ethiopia. Upon reaching Ghana, however, Rezaq was detained by Ghanian officials, who subsequently released him to his original itinerary. When Rezaq landed in Nigeria, Nigerian authorities escorted him to an aircraft chartered by the United States Federal Bureau of Investigation. Rezaq was then flown to the United States. While en route to the United States, a federal grand jury of the District of Columbia returned an indictment, charging Rezaq with aircraft piracy. FBI agents executed an arrest warrant upon Rezaq's arrival at Dulles Airport, and escorted Rezaq to the federal courthouse of the District of Columbia. Shortly thereafter, the grand jury returned a superseding indictment, on which defendant was arraigned.

 On July 22, 1993, defendant sent the prosecution a letter detailing several discovery requests. The government responded to some, but not all of defendant's requests. Defendant then filed a series of motions to dismiss the indictment as well as a motion to compel the government to produce evidence pertaining to the unanswered requests. *fn1" The United States opposed the motion, and filed a number of discovery-related motions of its own, including a motion for a protective order to establish security procedures for classified documents made available during discovery. On July 27, 1994, this court issued a Discovery Order, a Protective Order, and an accompanying Memorandum Opinion on Discovery resolving the discovery motions. The United States now asks the court to reconsider aspects of both of these Orders. The government's motion to reconsider as well as three of defendant's motions to dismiss are discussed below.

 II.

 DISCUSSION

 A. Motion to Reconsider the Discovery Order with Respect to Discovery Request Number 9

 A district court "always has the power to modify earlier orders in a pending case." Kapco Mfg. Co. v. C & O Enterprises, Inc., 773 F.2d 151, 154 (7th Cir. 1985). Moreover, it is well established that a district court has the inherent power to reconsider interlocutory orders and reopen any part of a case before entry of final judgment. See Marconi Wireless Tel. Co. v. United States, 320 U.S. 1, 47 - 48, 87 L. Ed. 1731, 63 S. Ct. 1393 (1943). This authority does not rest in any particular federal rule, but emanates from the inherent power of the court. See A Hollow Metal Warehouse v. United States Fidelity & Guar. Co., 700 F. Supp. 410, 411-12 (N.D. Ill. 1988). Thus it is within a district court's discretion to revisit previously issued orders while the case is still pending before the court.

 
All documents concerning any advice, assistance requests or any other communication between the government of the United States and Malta concerning the apprehension, investigation, trial, or sentencing of the defendant in Malta
 
The names, last known addresses and phone numbers of any individual in the government of the United States or the government of Malta known to have information concerning the role the United States played in the apprehension, investigation, trial or sentencing of the defendant.

 Letter from Defendant to U.S. Attorney of July 22, 1993, at 4. When the government failed to respond to defendant's request, defendant filed a motion to compel production of the information. Defendant argued in his motion that "documents in the possession of the government shedding light on the role of the United States in the apprehension, investigation, trial, or sentencing of Mr. Rezaq are relevant to and necessary for resolution of this claim." Def.'s Mot. to Compel Disc., at 20.

 The government countered in its opposition that it should not be required to comply with this request because defendant's double jeopardy defense fails as a matter of law. See Govt.'s Opp'n to Def.'s Mot. to Compel Disc., at 24. The government's position was supported by two arguments previously asserted in its opposition to defendant's motion to dismiss on double jeopardy grounds. See Govt.'s Opp'n to Def.'s Mots. to Dismiss, at 25 - 31. First, the government argued that it was beyond dispute that the United States and Malta are separate sovereigns with independent prosecutorial authority, and that extensive U.S. involvement in the Maltese prosecution "does not lead to the inference, let alone the conclusion, that the Maltese prosecution was a 'sham and a cover' for the United States prosecution." See id., at 29. Second, the government argued that defendant's double jeopardy defense fails because the defendant was never "twice put in jeopardy" for the same offense. U.S. Const. Amend. V. The statutory offense of aircraft piracy, the government contended, is a completely different offense than the offenses charged by the Maltese prosecution. The government concluded that the discovery request should be excluded entirely because the evidence sought by the discovery request is not relevant to any defense available to the defendant.

 The court found the government's position unpersuasive. The court reasoned that defendant's double jeopardy argument was "not wholly unsupported by legal authority," and pointed out that defendant's double jeopardy defense might well succeed if the defendant could discover evidence sufficient to show that Malta's prosecution was merely a tool for the United States government. United States v. Rezaq, 156 F.R.D. 514, 521, 908 F. Supp. 6 (D.D.C. 1994) (citing Bartkus v. Illinois, 359 U.S. 121, 123-24, 3 L. Ed. 2d 684, 79 S. Ct. 676 (1959) [hereinafter July 27, 1994 Mem. Op. on Disc.]. Moreover, the court found that defendant's discovery request was "tailored to develop evidence that [would] offer material support" for defendant's double jeopardy defense. *fn3" See July 27, 1994 Mem. Op. on Disc., at 16. The court therefore held that defendant was entitled to this information under Rule 16 and granted defendant's motion to compel.

 The court finds this second argument persuasive. The Maltese indictment charged defendant Rezaq with nine separate offenses: (1) arresting and holding persons against their will without the requisite authority to do so; (2) attempted willful homicide of Methad Mustafa, an Egyptian Sky Marshal; (3) attempted willful homicide of Tamar Artzi, the surviving Israeli passenger; (4) willful homicide of Nitzan Mendelson, an Israeli passenger; (5) attempted willful homicide of Patrick Baker, an American passenger; (6) willful homicide of Scarlet Rogenkamp, an American passenger; (7) attempted willful homicide of Jackie Pflug, an American passenger; (8) possession of explosives; and (9) possession of firearms See Maltese Indictment Num. 4/88, at 1 - 18. *fn4" The United States, in contrast, seeks to prosecute defendant for aircraft piracy. *fn5" 49 U.S.C.A. §§ 1472(n)(1), 1472 (n)(1)(B). The aircraft piracy statute under which defendant Rezaq is charged seeks to punish individuals who seize control of an aircraft by "force or threat thereof, or by any other form of intimidation" when the aircraft is in flight outside the special aircraft jurisdiction of the United States. See 49 U.S.C.A. §§ 1472 (n)(1), 1472(n)(2)(A). The aircraft piracy statute also provides a penalty enhancement up to life imprisonment or death if the death of another person "results from the commission. . . of the offense." 49 U.S.C.A. § 1472(n)(1)(B).

 The determination for double jeopardy purposes as to whether aircraft piracy is the same offense as one or all the offenses for which the defendant was previously prosecuted and convicted in Malta turns on an analysis of the elements of the offenses charged. If each offense contains a legal element not included in the other offenses, then the Double Jeopardy Clause will not bar the successive prosecution. See Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932); ...


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