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U.S. v. RASHED

December 21, 1999

UNITED STATES OF AMERICA
v.
MOHAMMED RASHED.



The opinion of the court was delivered by: Lamberth, District Judge.

MEMORANDUM OPINION

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 DENIED.*fn2

I. Background

A. The U.S. Indictment

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 ...


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