The opinion of the court was delivered by: Lamberth, District Judge.
Defendant Mohammed Rashed moves this Court for dismissal of
Counts 1 and 3-7 of the indictment in this case, claiming that
his prior prosecution in Greece for offenses resulting from the
same aircraft bombing forecloses a United States trial on these
charges. Specifically, defendant argues that the Double Jeopardy
Clause of the Fifth Amendment bars a U.S. prosecution because the
United States so dominated and controlled the Greek proceedings
that the dual sovereignty doctrine does not apply. Alternatively,
he asserts that the Montreal Convention*fn1 prohibits "serial
prosecutions" for the conduct it proscribes. This Court finds
defendant's arguments unpersuasive. Thus, having considered the
memoranda of law in support of and in opposition to this motion,
oral argument, and the relevant law, defendant's motion to
dismiss is DENIED. Moreover, as the Court finds that to valid
legal basis exists to support defendant's double jeopardy claim,
defendant's accompanying motion to compel discovery is likewise
Defendant Mohammed Rashed, who is believed to have been the
second-in-command of the "15th of May" Palestinian terrorist
organization, has been charged with conspiring to attack the
interests of the United States through a series of bombing
missions at various locations around the world. In particular,
Rashed is charged with placing a bomb on board an August 11, 1982
Pan Am flight from Tokyo, Japan to Honolulu, Hawaii. The bomb
exploded 20 minutes before the flight was scheduled to land in
Hawaii, killing a Japanese teenager, Toru Owaza, and wounding 15
other passengers. In addition, during the same month, another
bomb was discovered on a Pan Am aircraft in Rio de Janeiro,
Brazil, but was removed safely.
On July 14, 1987, a federal grand jury in Washington, D.C.
returned a nine-count, sealed indictment against defendant Rashed
and two co-conspirators, his Austrian-born wife Christine Pinter
and Abu Ibrahim, the alleged bomb maker. As noted above, the
charges at issue in the present motion are Counts 1 and 3-7; they
are as follows: Count 1 charges defendant Rashed and the two
co-conspirators with conspiring to commit murder by means of
planting an explosive on a U.S. air carrier in violation of
18 U.S.C. § 1117. Count 3 charges the defendants with the
premeditated murder of Toru Ozawa, by means of an explosive
device within the special territorial jurisdiction of the United
States. 18 U.S.C. § 1111. Count 4 charges the defendant with
damaging a civilian aircraft in violation of 18 U.S.C. § 32.
Count 5 charges defendant with damaging property by means of an
explosive in violation of 18 U.S.C. § 844(I). Count 6 charges
defendant with placing a bomb on an aircraft intended for foreign
air transportation in violation of former 49 U.S.C.App. §
1472(1)(2) (1986). Count 7 charges defendant with assaulting
aircraft passengers in violation of 18 U.S.C. § 113(a).
B. The United States Requests Extradition
Defendant Rashed was apprehended by Greek authorities on May
30, 1988, when he attempted to use a false Syrian passport to
leave Athens, Greece. Upon learning of Rashed's intention and
pursuant to the bilateral extradition treaty*fn3 in effect at
that time, the United States requested that Greece provisionally
arrest Rashed pending transmission of a formal extradition
request. Greece provisionally arrested the defendant, but did not
give the United States the two months allowed under the
extradition treaty to perfect the extradition request. Rather,
Greece insisted that the United States provide the extradition
documents on an expedited basis. See Transcript of Hearing in
Chambers, June 1, 1988, at 2. Accordingly, the United States
submitted these documents to Greece in early June 1988. The
extradition documents indicated that the United States sought the
defendant's extradition for a U.S. prosecution on all counts
contained in the indictment. Notably, nothing in the request
suggested that the United States wanted Greece to prosecute
Rashed. See In the Matter of the Extradition of Mohammed Rashed
a/k/a Rashed Mohammed.
Subsequently, the U.S. extradition request was channeled
through the Greek judicial system. In connection with this
process, Greece requested and was supplied with additional
information from the United States. In November 1988, the Greek
Supreme Court determined that Rashed could not be extradited on
the conspiracy counts of the indictment, but that he would be
extradited on the rest of
the charges relating to the bombing of the Pan Am flight from
Tokyo to Hawaii. Before the Greek Supreme Court would finalize
this decision, however, the United States had to provide Greece
with additional evidence. The United States turned over this
evidence, and the Greek Court entered an extradition order for
Rashed on four of the nine counts.*fn4 Decision 820/1989, Greek
Supreme Court, Sixth Penal Section, dated May 13, 1989.
In light of the extradition order and the expectation that
Rashed would be transferred to the United States, U.S.
prosecutors began interviewing witnesses and preparing for trial.
Meanwhile, after inconclusive Greek elections that left no single
party capable of commanding a majority, the Greek government
refused to transfer custody of the defendant. Thus, more than 27
months after the United States had originally requested Rashed's
extradition, and over a year after his extradition had been
authorized by Greek's highest court, Greek political authorities
denied the U.S. extradition request. Moreover, Greece informed
the United States that it had decided to exercise its right as a
signatory to the Montreal Convention and prosecute Rashed itself.
As the Greek Minister of Justice explained to the United States,
"under present conditions, the extradition of the Palestinian
citizen is not expedient." Decision, the Minister of Justice,
Non-Extradition of the Palestinian Citizen Mohammed Rashed to the
USA Authorities, September 11, 1990.
C. The Greek Indictment and Prosecution
The day after Greece informed the United States that it would
not be honoring its extradition request, the Athens Public
Prosecutor issued the Greek equivalent of an indictment, charging
Rashed with four violations of Greek law: "[i]ntentional homicide
be a perpetrator dangerous to the public safety," Greek Article
26, ¶ 1(a); "illegal seizure of aircraft," Greek Article 178, ¶
1; "[p]lacement of explosive devices in aircraft," Greek Art.
180; and "[i]nstigation of damage to aircraft," Greek Art. 179, ¶
1. See Hellenic Republic Public Prosecutor's Office District
Court A.B.M. B90/2695.*fn5 Greek officials subsequently
appointed a magistrate, Aspassia Karellou, to proceed with an
investigation into these charges. This investigation included
requests for assistance from the United States, as well as an
evidence-gathering visit to the United States. Over the course of
this investigation, Karellou and the Greek prosecutors were shown
all of the original evidence collected by the United States, as
well as evidence obtained from other foreign countries. And, once
Rashed's trial was underway, Greek prosecutors formally
subpoenaed several FBI Special Agents to testify and U.S.
prosecutors traveled to Greece to handle additional requests for
assistance from Greek prosecutors.
Following his trial before a three-judge court, defendant
Rashed was convicted of the intentional homicide and the
explosives charges. He was acquitted of the aircraft seizure and
damage charges. He was subsequently sentenced to 18 years in
prison. Decision 16/1992, Minutes and Decision, Athens Court of
Appeals, January 8, 1992. Nevertheless, under Greek law,
defendant Rashed was entitled to a new trial de novo by a
five-member appellate court. As such, just as they had during the
first trial, Greek prosecutors requested U.S. assistance and
subpoenaed FBI special agents as witnesses. The second court of
appeals also convicted defendant Rashed of the
first and third counts of the Greek indictment, but his sentence
was reduced to 15 years. Decision 664/1993, Minutes and Decision,
Athens Court of Appeals, July 5, 1993. The Greek Supreme Court
affirmed the sentence and conviction. Decision 362/1995, Greek
Supreme Court, January 31, 1995.
After having been in custody for eight years, Rashed was
released from prison by Greek authorities in early December 1996.
In his travels away from Greece, Rashed was taken into custody.
He was subsequently arrested by the FBI and ...