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United States v. Bagcho

United States District Court, D. Columbia.

December 17, 2015

UNITED STATES OF AMERICA
v.
HAJI BAGCHO, Defendant

          Haji Bagcho, aka: HAJI BAGH CHAGUL, HAJI BAGCHAGUL, Appeals court case number: 12-3042 U.S.C.A., Defendant, Pro se, FLORENCE ADMAX.

         For Haji Bagcho, aka: HAJI BAGH CHAGUL, HAJI BAGCHAGUL, Appeals court case number: 12-3042 U.S.C.A., Defendant: Sandra Gayle Roland, LEAD ATTORNEY, FEDERAL PUBLIC DEFENDER FOR D.C., Washington, DC USA; Shawn Franklin Moore, LEAD ATTORNEY, Michelle M. Peterson, FEDERAL PUBLIC DEFENDER FOR THE DISTRICT OF COLUMBIA, Washington, DC USA.

         MEMORANDUM OPINION

         ELLEN SEGAL HUVELLE, United States District Judge.

         Before the Court is defendant Haji Bagcho's motion for a new trial. (Defendant's Motion for New Trial, June 5, 2015 [ECF 105] (" Def's Mot." ).) Defendant was convicted in 2012 of three narcotics-related charges and sentenced to life in prison. The government subsequently disclosed that, prior to trial, a U.S. government agency had concluded in June 2010 that one of the prosecution's principal witnesses, Kiramatuallah Shir Mohammed Khan (" Qari" ), was a fabricator who had provided non-credible information to the agency. ( See Arthur G. Wyatt Letter to Sandra Rolland, September 22, 2015 (" Sept. 22 Letter" ).) Defendant now argues that the prosecution's failure to disclose this agency's credibility assessment constituted a Brady violation, depriving him of a fair trial.

         For the following reasons, the Court concludes that the government violated defendant's right to due process by failing to turn over the favorable impeachment evidence, but that the Brady evidence was only material to Count Four, which charged that defendant trafficked narcotics while funding terrorism in violation of 21 U.S.C. § § 960(a), 841(a), and 841(b)(1)(A).

         BACKGROUND

         I. FACTS

         On January 28, 2010, the grand jury charged defendant with four offenses in a superseding indictment: conspiracy from 2005 to 2010 to distribute one kilogram or more of heroin intending and knowing that the heroin would be unlawfully transported into the United States, in violation of 21 U.S.C. § § 959, 963, and 960(b)(1)(A); distribution on September 25, 2006, of one kilogram or more of heroin intending and knowing that the heroin would be unlawfully transported into the United States, in violation of 21 U.S.C. § § 959(a)(1), 959(a)(2), and 960(b)(1)(A); distribution on May 21, 2008, of one kilogram or more of heroin intending and knowing that the heroin would be unlawfully transported into the United States, in violation of 21 U.S.C. § § 959(a)(1), 959(a)(2), and 960(b)(1)(A); and narcotics trafficking while funding terrorism, in violation of 21 U.S.C. § § 960(a), 841(a), and 841(b)(1)(A) (" narcoterrorism" ). (Superseding Indictment, Jan. 28, 2010 [ECF 11].) At the conclusion of defendant's first trial in November 2011, the jury was deadlocked on all counts and a mistrial was declared.

         At the second trial, the prosecution's evidence proved that defendant ran a large heroin trafficking operation in Afghanistan, beginning during the time of Taliban rule and continuing after the American invasion in 2001.[1] In support of the indictment, the government introduced extensive physical evidence, including tape-recorded conversations between defendant and co-conspirators about heroin transactions; heroin production, accounting, and packaging equipment seized from defendant's compound in a raid on October 9, 2006; drugs delivered to the government by DEA informants; and ledgers seized from an October 31, 2006 raid on the sarafi (or money-changing shop) of defendant's associate, Zahir Shah.

         The prosecution also relied on U.S. and Afghan law enforcement officials and several Afghan civilians. Count One (conspiracy) was supported by testimony from DEA Agents Higgins, Thompson, Cowles, Brittain and Mah; undercover informants known as Farid and Qari; undercover Afghan police officers Captain Javid, Colonel Shaheen, and Captain Yaseen; and various experts. Count Two (2006 distribution) relied on the testimony of Agent Higgins, Agent Cowles, Captain Javid, and Farid. Count Three (2008 distribution) was supported by testimony from Agent Mah, Qari, and Captain Yaseen. Count Four (narcoterrorism) was based almost entirely on Qari's testimony.

         As a longtime confidant and employee of defendant, Qari provided the most wide-ranging testimony of any witness. According to Qari, he began working for defendant's son, Sacha Gul, in late 1998. Qari testified that Sacha Gul received phone calls from his father about drug transactions and then wrote corresponding entries into accounting ledgers, including some in foreign currency amounts. At some point after the American invasion in 2001, Qari was employed by the defendant. He served as a teacher for defendant's children, but also worked in the heroin-trafficking operation and lab, where he helped stir the opium in drums and then packaged it for distribution using a heat-sealing machine.

         A few months before the October 9, 2006 raid by DEA agents on defendant's compound,[2] defendant partnered with individuals whom Qari identified as Haji Ghayrat and Haji Bakhti[3] to send 250 kilograms of heroin to America and advised his chemist Fahrman Shah to prepare the drugs quickly. Qari testified that defendant then celebrated the deal by throwing an enormous party that included sheep sacrifices. Qari described defendant's female employees fasting in order to swallow large amounts of the heroin to transport to the United States. He also testified to another deal that occurred around the same time period, shortly before the October raid, between defendant and Haji Wazyat to distribute one thousand kilograms of heroin.[4]

         Qari was present at defendant's compound for the October 9, 2006 raid and was handcuffed by the DEA, but not arrested. He testified that afterward he began fearing the American government, which in turn prompted him to begin working for the DEA on multiple cases and investigations. Qari first met with the DEA in September 2007, but signed his cooperation agreement with the agency on May 27, 2008. He insisted that he did not agree to help the DEA for financial reasons, despite receiving $45,000; instead, he wanted to stop the flow of heroin and move out of defendant's home. Qari also testified that he liked working for the Americans and hated the Taliban.

         Following the raid, defendant moved to Pakistan. The DEA enlisted Qari, an individual named Mukhabir, and Captain Yaseen in a plan where they sought to involve defendant in a fake deal to send heroin to Japan and the United States. In April 2008, Qari and Mukhabir recorded conversations with defendant about executing such a deal. Then, on May 21, 2008, Qari testified that he, Mukhabir, and Captain Yaseen (with DEA coordination and support) sold a 4 kilogram sample of heroin on defendant's behalf as part of a " controlled buy." On July 9, 2008, defendant revealed to Qari in a phone call that he knew he was working for the DEA, and as a result, he cut off communications for a period of time.

         According to Qari, both before and after the October 2006 raid, defendant was funneling money, weapons, and supplies to members of the Taliban to support jihad. He first mentioned this connection to the Taliban in a meeting with the DEA on October 10, 2008. Qari described multiple meetings between Sacha Gul, himself, and Taliban Commander Garq Parq Maftoon--including a meeting at defendant's home--where they gave money on behalf of defendant to Maftoon. Qari also testified that defendant sent weapons and supplies via heroin smugglers to Taliban Commander Khona and to the Hayatabad base of another Taliban fighter named Mulawi Kabir, adding that defendant kept a record of his transactions with the Taliban in a pocket notebook.

         Defense counsel vigorously cross-examined Qari. Counsel probed Qari's frequent confusion over the sequence of events and attacked his credibility by asking about discrepancies between Qari's testimony in the first and second trials, as well as the financial and immigration benefits he received from the DEA.[5] Defense counsel also probed the issue of why, despite meeting with the DEA for over a year, Qari failed to mention the connection between defendant and the Taliban until October 2008.

         The jury convicted defendant of Counts One, Two, and Four, but acquitted on Count Three. (Verdict Form, Mar. 13, 2012 [ECF 78]). He was sentenced to life imprisonment for each count, to be served concurrently. (Judgment, June 13, 2012 [ECF 94].)

         II. PROCEDURAL POSTURE

         The government first notified defense counsel on April 13, 2015 that information concerning Qari had come to the attention of the Justice Department. (Def's Mot., Ex. 3.) The letter disclosed that " [p]rior to the 2012 trial, a U.S. government agency concluded that Qari had made statements that were not credible and that Qari was therefore a fabricator." ( Id. ) On June 5, 2015, defendant filed a motion for a new trial and a motion to compel disclosure of the newly discovered evidence. ( See Def's Mot.; Def's Motion to Compel, June 5, 2015 [ECF 106].)

         On July 1, 2015, the government sent defendant a follow-up letter that provided an unclassified summary of the underlying classified records. (Gov's Consolidated Response, July 20, 2015 [ECF 111] (" Gov's Consolidated Response" ), Ex. 3.) On July 20, 2015, the government filed its response to both motions, asking the Court to grant it 45 additional days to file an ex parte, in camera motion under Section 4 of the Classified Information Procedure Act, 18. U.S.C.App. III (" CIPA" ). (Gov's Consolidated Response at 8.) To determine whether the underlying classified evidence had to be disclosed, the Court ordered the government to file an ex parte, in camera motion pursuant to Section 4 of CIPA, and to provide the classified information for the Court's in camera review. (Order, July 27, 2015 [ECF 113].)

         The government filed its CIPA motion with the Court's Classified Information Security Officer on August 20, 2015, and the Court held an ex parte, in camera CIPA hearing on September 1, 2015. See CIPA § 5. On September 22, 2015, the Court ordered the government to deliver a revised, supplemented version of its July 1 letter to defense counsel, granted the government's CIPA motion, and denied defendant's motion to compel additional discovery. (Order, Sept. 22, 2015 [ECF 132].)

         After delivering the revised letter to defense counsel on September 22, 2015, the government filed its opposition to defendant's motion for a new trial on October 2, 2015. (Government's Opposition to Defendant's Motion for New Trial, Oct. 2, 2015 [ECF 134] (" Gov's Opp'n" ). Defendant filed his Reply on October 28, 2015. (Def's Reply to Gov's Opposition to Motion for New Trial, Oct. 28, 2015 [ECF 136] (" Def's Reply" ).)

         III. UNCLASSIFIED SUMMARY OF UNDERLYING EVIDENCE

         The government's September 22, 2015 letter disclosed that, from November 2009 to June 2010, Qari had provided information to a U.S. government agency via a third party for sums totaling " less than $10,000." (Sept. 22 Letter at 2.) In relevant part, the information pertained to Maftoon, one of the Taliban commanders prominently featured in Qari's trial testimony. ( Id. at 1.) In June 2010, the U.S. government agency concluded that Qari's statements about an alleged May 2010 trip to Maftoon's compound and various terrorism targets were not credible based on the agency's view that " the statements regarding counterterrorism matters seemed unrealistic and sensational." ( Id. ) According to the government, there was no further investigation into the veracity of Qari's claims, but the U.S. government agency concluded that Qari was " likely a fabricator and/or information peddler," and in June 2010, directed the third party to cease contact with Qari. ( Id. ) When the government agency received a report from the DEA detailing information that Qari had provided directly to the DEA, the agency " informed a DEA employee in the Kabul, Afghanistan office of its conclusion that Qari was a fabricator." ( Id. ) According to the government, this information was stored in government records, but the prosecution failed to discover it during its searches for Brady material prior to defendant's two trials " due to discrepancies in the spelling of Qari's name." (Gov's Opp'n at 3 n.2.)

         On or about May 29, 2014, an Assistant United States Attorney for the Southern District of New York contacted the DOJ's Narcotic and Dangerous Drug Section (NDDS) to inquire about defendant's case and the witnesses involved. During this conversation and subsequent review of agency records, NDDS apparently learned for the first time that the potential impeachment material existed, but was not turned over prior to trial. (Gov's Opp'n at 3.) The September 22 letter from DOJ further disclosed that, following the discovery of the evidence, at least one other federal prosecution that had used Qari as an informant was dropped. ( See Sept. 22 Letter at 2 (" The evidence to support the conviction was, in part, based on information provided by Qari. Based on a number of factors, including...the allegations about Qari referenced in NDDS's April 14, 2015 letter, the National Security Division decided not to approve the ...


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