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United States v. Trabelsi

United States District Court, District of Columbia

August 2, 2019




         Defendant Nizar Trabelsi is charged with conspiring to kill U.S. nationals outside the United States in violation of 18 U.S.C. §§ 2332(b)(2) and 1111(a) and conspiring and attempting to use weapons of mass destruction in violation of 18 U.S.C. §§ 2332a and 2. Since 2013, Trabelsi has been held in pretrial confinement subject to special administrative measures (“SAMs”) imposed on him pursuant to 28 C.F.R. § 501.3. Those measures, among other things, prevent him from having contact with inmates and other pretrial detainees and limit his contact with family members and others. In 2014, Trabelsi moved to compel modification of the conditions of his confinement, and the Court granted in part and denied in part that motion. United States v. Trabelsi, 2014 WL 12682266 (D.D.C. June 18, 2014). According to the government, Trabelsi has repeatedly violated his SAMs since then, and, as a result, it has modified the SAMs by, among other things, rescinding Trabelsi's authorization to have telephone contract with Asma Berrou, who Trabelsi identifies as his wife and who the government concedes Trabelsi married in a religious ceremony held over the telephone.

         Trabelis now moves, once again, to modify his SAMs and, although not covered by the SAMs, to modify other conditions of his confinement. Dkt. 170, Dkt. 183. He first argues that the SAMs should be modified to allow him to communicate with Berrou by telephone and video conference and to interact with other inmates. Dkt. 183 at 1. Second he argues that, independent of the SAMs, the Court should order the jail to allow him access to a dedicated laptop computer to assist in the preparation for his trial and to provide him with the opportunity for adequate exercise. Dkt. 170 at 8. Finally, Trabelsi requests that the Court authorize the issuance of a Rule 17 subpoena to the Rappahannock Regional Jail, where he was previously held, so he can seek information about purported mistreatment, which he contends may support his motion to modify the SAMS.

         As explained below, the Court will deny Trabelsi's motions. With respect to the SAMs, Trabelsi has not shown that the conditions imposed, although onerous, are not reasonably related to legitimate governmental interests. With respect to the other conditions of his confinement, the Northern Neck Regional Jail, where he is currently being held, has adequately addressed the concerns he raises. Finally, with respect to Trabelsi's request that the Court issue a subpoena to the Rappahannock Regional Jail, the government investigated the allegations at the Court's direction and found no corroboration, and, in any event, because Trabelsi is no longer being held at that facility, his allegations do not support modification of the SAMs.

         I. BACKGROUND

         In 2013, the Defendant was extradited to the United States from Belgium and housed in the Rappahannock Regional Jail (“RRJ”) until September 2018, when he was transferred to Northern Neck Regional Jail (“NNRJ”). Dkt. 185 at 3. On November 1, 2013, the then-Acting Attorney General issued SAMs pursuant to 28 C.F.R. § 501.3 to govern the conditions of Defendant's confinement, id., which are reevaluated and renewed annually. The current SAMs are prescribed in a memorandum dated October 25, 2018, issued by Deputy Assistant Attorney General Raymond M. Hulser to the United States Marshal's Service. See Dkt. 185-2.

         The SAMs provide, inter alia, that for non-legal communications, the Defendant is permitted to communicate via mail and telephone with certain pre-authorized individuals. See Dkt. 185-2 at 11-12. Such calls may not be recorded, and the individuals the Defendant speaks to are prohibited from disseminating his communications to third parties. See id. “These communication provisions have been in effect continuously since the implementation of the SAMs to the present, ” Dkt. 185 at 4, but the most recent extension of the SAMs excludes the Defendant's wife, Asma Berrou, from the list of individuals with whom he can communicate by telephone, see id. at 4 n.3. The SAMs also place limitations on the Defendant's interactions with other inmates:

The inmate is limited, within . . . reasonable efforts and existing confinement conditions, from having contact (including passing or receiving any oral, written, or recorded communications) with any other inmate . . . .that could reasonably foreseeably result in the inmate communicating (sending or receiving) information that could circumvent the SAM's intent of significantly limiting the inmate's ability to communicate (send or receive) threatening or other terrorism-related information.

Dkt. 185-2 at 6. Though the SAMs do not require administrative segregation, see Dkt. 185 at 4, which is a form of separation from the general prison population, both RRJ and NNRJ have determined that the Defendant should be held in administrative segregation. See Dkt. 185-3 at 1-2 (Back Decl. ¶¶ 5-6).

         In 2014, Defendant challenged the SAMs provisions prohibiting statements from being divulged to a third party and those prohibiting him from communicating with members of the media, as well as non-SAMs provisions including the manner in which he was restrained by handcuffs during legal visits and restrictions on his recreation time. See Dkt. 37; Dkt. 42. Chief Judge Roberts denied these motions in large part, holding that the challenged conditions were reasonably related to legitimate governmental interests in preventing acts of violence and terrorism. See United States v. Trabelsi, No. CR 06-89 (RWR), 2014 WL 12682266, at *3 (D.D.C. June 18, 2014).

         Now, Trabelsi brings a different challenge to his conditions of confinement. He has filed two sets of motions, the first requesting modification of the conditions of confinement imposed by the SAMs and by NNRJ and the second seeking leave to file a subpoena on the prior facility at which he was held. See Dkt. 170; Dkt. 183; Dkt. 191. Defendant challenges the SAMs provisions (1) limiting his contact with other inmates; and (2) prohibiting him from communicating with Berrou via telephone. See Dkt. 170 at 8; Dkt. 183 at 10. These motions also challenge non-SAMs conditions imposed at NNRJ, including inadequate food and medical treatment, access to showers, and denial of a dedicated laptop computer for his legal use, see Dkt. 183 at 8-10; Dkt. 170 at 6-8, and allege mistreatment by prison officials and excessive charges for phone calls at the prior facility at which he was held, see Dkt. 183 at 9-10. Finally, the Defendant separately seeks leave to issue a third-party subpoena regarding his allegations of abuse at RRJ. See Dkt. 191.


         The government may subject a pretrial detainee “to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution.” Bell v. Wolfish, 441 U.S. 520, 536-37 (1979). As a general matter, “when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). The D.C. Circuit has emphasized the deferential nature of this standard:

To prevent judicial overreaching into matters of prison administration, courts are to uphold prison regulations that impinge on inmates' constitutional rights as long as those regulations are reasonably related to legitimate penological interests . . . a stark departure from the inflexible strict scrutiny ...

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