United States v. Al-Imam

Opinion

REDACTED/ CLEARED FOR PUBLIC RELEASE Filed with Classified Information Security Officer CISO 0,-1\ ~ ,r -'?,-- UNITED STATES DlSTRICT COURT Date ~ S- / { lJt / ,,.ld \ 'j FOR THE DISTRICI' OF COLUMBIA ~

UNITED STATES OF AMERICA,

V,

MUSTAFA MUHAMMAD MUFTAH AL- Case No. 17-cr-00213 (CRC) IMAM

Defendant.

MEMORANDUM OPINION AND ORDER Mustafa Al-Imam is charged in a seventeen-count criminal indictment stemming from his

alleged rnle in the September 2012 attack on U.S. diplo111atic and intelligence facilities in

Bengbazi, Libya, The Government moves to admit i.1110 evidence at trial telephone records that it

alleges are associated with a phone number used by the Defendant's alleged co-conspirator,

Ahmed Abu Kha ta llah, who was tried in this Court on virtually identical charges in 2017, The

Government seeks admission of the records under federal Rule of Evidence 803(6), the

business-records exception to the prohibition on hearsay evidence. IL also moves to admit -

certification from Mohamed Ben Ayad, the CEO of the cell~phone carrier Libyana

Telecommunications, attescing to the authenticity of the records based on the factors set forth in

18 U.S.C. § 3505. Al-Imam opposes both requests.

The Government ir1oved to admit these same phone records into evidence in advance of

Abu Khatallah's trial. At that time, the Court held a hearing regarding the Government's

acquisition of the records and Mr. Ayad's certification. Based on. its factual findings, the Court

concluded that the Government h~d met its burden to show by El preponderance of the evidence

that the records were admissible. Here, Al~Imam renews ObJections to the introduction of the

records made by Abu Khatallab a11d identifies perceived flaws in the Courr's prior assessment.

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For rhe reasons that follow, the Court will grant the Government's motion. Both the telephone

records and Ayad's § 3505 certification are admissible al trial.

I. Factual Background

The Court draws the following factual background from irs Abu Khatallah decision,

based on the hearing it held on Septembel' 14, 2017. See United States v. Abu Khatallah, 278 F.

Supp. 3d 1 (D.D.C.2017). 1 Al"lmam has not contested or othel'wise sought to revisit these

factual findings.

The telephone records at issue were first obtained

- in October 2012. Hr'g Tr. 19:20-24 (Sept. 14, 2017); Gov. Ex. l 101.'-

.. roceedings, the Court admitted Govemrnenl Exhibit 1 1 0 1 , _ for purposes of rhr: hearing only. Hr'g T ~ 14, 2017).

-1 In the prior proceedings, Abu Khatallah pointed to some evidence suggesting the telephone number was not his, such as the fact that someone else is listed as the number's subscriber. See, e.g., Hr' g Tr. 119:4-7 (Sept. 14, 2017). The Court concluded that sufficient evidence existed to infer the phone number was used by Abu Khatallah during the releva.nCiime period, including that the listed subscriber was his ~rather, the testimony that Libyan law did not 2

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prevent phones from being subscribed in another's name, and statements allegedly made to FBI Agent Juslin O'Donnell indicating Abu Khatallah used this number at the time in question. See id. 20:20-24, 25:20-26: 14, 45:8-16, 81: 15-20, 86:22-87:1, 88:7-12, 88:24--25 (Sept. 14, 2017). Al-Imam has not rene\:ved Abu Khatallab's arguments in this regard. 3

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-··· Ill

The Federal Bureau ofinvestigacion ("FBI"), which was investigating the Benghazi

attacks, obtained a copy of these telephone records in Ocrober 2012. Hr'g Tr. 70: 13-15, 91: 14-

18 (Sept. 14, 2017). In January 2017, FBI Agenl Justin O'Donnell contacted Mohamed Ben

Ayad, the CEO and co-founder of Llbyana, seeking to authenticate the records. Id. 71 : 16-20,

72:5, 73:21-23. Prior to meeting with him, Agent O'Donnell and other agents confirmed Ayad's

identity as the Libyana CEO through open somces and publicly available information. Id.

72: 10-17, 98: 17-22. Agent O'Donnell and FBI Agem Mike Clarke met with Ayad outside the

United States on January 21, 2017. Id. 72:2-5. Ar the meeting, O'Donnell and Clarke

introduced themselves as FBI agents investigating the September 2012 attack on the U.S.

Mission and Annex in Benghazi. Id. 72:20-24, 7_3:14-16. Ayad agreed to assist the two agents

in cheir investigation with respect to the telephone records. Ict. 7J: 18.

During the meeting, Agent O'Donnell and Agent C]arke showed Ayad a hard copy of the

telephon.e l'ecords. Id. 74:6-10. Ayad told the agents that Libyana maintains call data records as

a matter of general practice for reasons such as acconncability and billing and that he was

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familiar with Libyana's business records practices. Id. 73:24-74:3, 85:17-86:1, 102:4-5. He

then reviewed the records that the agents broughl with them for several minutes. Id. 74:12-13.

After his review, he told the agents chat the records were call data records from Libyana,

explaining that the format of the records and yhe "profile page" that listed the information about

the subscriber were unique to Libyana. Id. 74: 17-19. Ayad explained that he had helped design

the format for the profile page with the subscriber information and recognized it. Id. 76: 1-3. In

addition, Ayad told the agents that two particular telephone number prefixes-092 and 094-

were used solely for numbers serviced by Libyana and the number here had a 092 prefix. Id.

75:2-1 7. The agents then asked Ayad to sign a certification form atlesting to the atlthen1icity of

the records and walked him through the form line-by-line to confirm his understanding before he

signed it. Id. 76:7-11, 77:4-78:2. They thanked Ayad for his assistance and asked if he might

also be able to reproduce the telephone records from the Libyana databases. Id. 79:7-9.

Following the mee1ing, Ayad em.ailed Agent O'Donnell additional phone i-ecol'ds for the

same telephone number. this time covering February 21, 2014 thro-ugh April 28, 2014. Id. 80:3-

9, 82:1-11. 5 Agent O'Donnell replied to Ayad Vta e~nail, thanking him fonhe records but

clarifying that the Government was inlerested in telephone records for July to December 2012,

not February co April 2014. Id. 82:16-23. Ayf!d responded thal he could not access those

records presently becatise Libyana's electronic records fron12012 had been corrupted, though

technicians were working on recovei-ing the data. Id . 83:1-3, 105:1-2, 107:4-6, 126:7-19.

5 ln the prior proceedings, defense counsel argued that these later records were suspect because they reflect calls made after Abu Khalallah was in C\.1stody. I-fr'g Tr. 153:16-154:2 {Sept. 14, 2017). However, the additional records produced for the specific number associated with Abu Khatallah covered February 21, 2014 through April 28, 2014. before Abu Khatallah was captured in June 2014. Id.82:6-11. Ayad also provided records that included calls in 2016 for or her numbers that had the sa1ne subscriber-Abu Kl1atallah 's broth.er-listed. Id. 80: l 0-17. As such, the record before the Court does not suggest there were calls made from the number associated with Abu Khatallah after his capture. 6 RED.ACTED I Cl. !:f,, RED FOR PU8UC RELFASF. REDACTED I CLEARED FOR PUBUC REU:ASE

Agent O'Donnell and Ayad spoke again by phone in July 2017, and Ayad confirmed that he was

slill unable to access the requested darn from 2012. Id. 107:7-10, 112:3-10.

On July 12, 2017, Agent O'Donnell sent an· electronic version of the telephone records to

Ayad and asked him to analyze them once more and compare them to existing phone records in

lheLibyanadatabases. Id. 83:6-13, 108:10-14, 109:23-110:4, 110:18-19. Ayaddidso,and

confirmed once again that the telephone records were Libyana call daia records. Id. 83: 15,

84;10-17, 84:25-85:1. He also provided another cerLif.ication as to the authenticity of the

records, signed on July 18, 2017. ld. 83:16, 84:4. This certificotion, which was made 1,mder

penalty of perjury ·of the laws of Libya, attested that the records "were made at or near the time

of the occurrence ofrhe matters set forth therein by (or from information Lrnnsmilled by) a

person with knowledge of those mattet·s," "were kept in the course of regularly conducted

business activity," "were made by lhe said business activity as a regular practice,', and "if not

original records, are duplicates of original records." Mol. in Limine to Introduce Phone Records

(''MIL") Ex. E, ECF No. 78-5.

Agent O'Donnell also attempted to confirm the authenticicy of the records by verifying

that they included calls that other evidence indicated had occurred in lhal tilT\e period. Hr'g Tr.

86:2---6 (Sept. 14, 2017). For instance, during interviews with Abu Khatallah following his

capture in June 2014, Abu Khatallah apparently told Agent O'Donnell that he had a phone call

with a number ending in 8891 on the evening of the attacks, September 11, 2012, around 8:30

p.rn. Id. 86:9-87: 1. Agent O'Donnell examined the records and found an entry documenting a

cal] wirh a number ending in 8891 on September 11, 2012 at 8:39 p.m. Id. 87:2-6. In addition,

Abt, Khata1\ah apparently told Agent O'Donnell about another specific call that he made to a

phone number ending in 1530 on September l l, 2012-which the recipienl of 1he call also

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verified to Agent O'Dorinell occurred. Id. 88:7-89:4. Agenl O'Donnell found an entry in the

telephone records docurnenting this call too. Id. 89:7-9. During the hearing, Agent O'Donnell

testified that there were other examples of telephone calls that he knew occurred and had verified

appeared on the records, though he could not recall any specific calls during the hearing. Id.

89:18-22, 122:8-22, 126:20-127:4.

The Court adds the following to its Abu Khatallah findings: Al-Imam told FBI agents

that he did not speak to Abu Kha ta Uah after leaving an A.nsar Al-Sharia camp on the evening of

the attacks. See Reply Supp. MIL Ex. F, ECF No. 115-1, at 3. This corresponds with the

records, whicb show several calls between the number Al-Imam used,~ id. at 1, and Abt1

Khatal1ah's purported number, none of\:vhich occurred after 10:45 p.rn. See MIL Ex.Cat 3433-

34.

TI. Leg~l Standard

Under the Federal Rules of Evidence, the Court "must decide any preliminal'y question

about whether ... evidence is admissible." Fed. R. Evid. 104(a). In considering admissibility,

the Court "is not bound by evidence rules, except those on privilege." Id. The proponenl of

evidence must show by a preponderance of the evidence that any necessa1·y prerequisites for

admission have been met. Bourjaily v. United Srates, 483 U.S. 175, 176 (1987).

The Federal Rules of Evidence permit admission of a "record of ao act, event, condition,

opinion or diagnosis" as a business record excepted from the prohibition on hearsay if:

(1) Lhe record was made at or near the time by-or from information transmitted by-

someone with knowledge;

(2) the record was kept in the comse of a regularly conducted activity of a business; and

(3) making the record was a regular practice of that activity.

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Fed. R. Evid. 803(6). These conditions must be shown "by the testimony of the custodian or

another qualified witness, or by a certification that compJies with Rule 902( 11) or (12) or with a

statute permitting certification." Id. Finally, the record is only ad11lissible if the opponent to

admission "does not show that the source of information or the m.ethod or circ\unstances of

pi-eparation jndicate a lack of trustworthiness." Id.

Neltlwr of the certification options in Rule 902(11) or (12) apply here because the

Government is seeking to admit foreign records in a criminal case. See Fed. R. Evid. 902(11)

(discussing admission of domestic records); id. 902(12) (discussing admission of foreign records

in a civil case). Instead, the Government relies on 18 U.S.C § 3505., which pmvides that "a

foreign record of a regularly conducted activity, or a copy of such record, shall not be excluded

as evidence by the hearsay rule" in a criminal case if there is a "foreign certification" attesting

that:

(I) such record was ir1ade, at or near the time of the occurrence of the matters set forth,

br (or from information transmiued by) a person with knowledge of those matters;

(2) sch record was kept in the course of a regularly conducted business activity;

(3) tll e business activity made such a record as a regt1lar praclice~ and (4) if such record is nol the original, such record is a doplicate of the original.

18 U.S.C. § ~ 505(a)( 1). A "foreign certification" is defined as "a written declaration made and I signed in a ~oreign country by the custodian of a foreigi1 record of regularly conducted activity or

anotl'.er qualified person that, if falsely made, would subject the maker to crirninal penalty under

the laws of that country." Id. § 3505(c)(2). A foreign record is admissible with a vaUd foreign

ce1·tificaLion that attests to the relevant requirements "unless Lbe source of information or the

method or c·rcumsranccs or preparation indic~1e lack of trustworthiness." ~ § 3505(a)(I).

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The UYovernment argt1es that the telephone records are admissible under Rule 803(6)

because the oreign certification signed by Ayad meets the requirements of§ 3505, see Fed. R.

Evid. 803(6) D) (permitting the requi.rem.ents to be shown by a certification that complies with a

scarnte perm'tting certification), and because the testimony of the witnesses at the September 14,

2017 hearin , along with the certification, show the requirements of the Rule are met. Hr'g Tr.

137: 11-24 ( ept. 14, 2017). The Coun agrees and will admit the records through an appropriate

witness, alm g with Ayad's certification.

III.

A.

The ourt will first brietly recap its Abu Khatallah holding before considering Al-

Imam 1s con ntions thal it erred. Abu Khatallah held that Ayad's certification-the same

certification at issue here-met the requirements of§ 3505(a)(l). 278 F. Su_pp. 3d at 7. That

certification signed under the penalty of pe1j1.1ry of the laws of Libya, see 18 U.S.C. § 3505(c),

attests that: 1) the 1·ecords were made at or near the time of the occurrence of the matters set

forth; (2) th1y were kept in tbe comse of a regularly conducted business activity; (3) the business

activity ma ib such records as a regular practice; and (4) if the records were not the original, they were a dupli ate of the original. See MIL Ex. E, ECf No. 78-5.

Afte · considering lhe certjfication and the full factual record, the Court concluded that the

certification met rhe requirements of§ 3505 and that the Government met its pr;mcr fctcie burden

under Rule 03(6). Abu Khatallah, 278 F. Supp. 3d at 7. Then, the Court considered whether

"the source r the method or circumstance of preparation" of the records "indicate[d] a lack of

trustword1l ess, '' 18 U.S .C. § 3 S0S(a)( l ), and concluded they did not. At this step of the

analysis, th burden was on the defendant, and the Court explained that ''the record is silent as to

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any indicatio 1 of tbe alteration of the records ... and supports the conclusion char the records

obtained wel Libyana call records." Abu Khatallah, 278 f. Supp. 3d at 8.

In ho ding that Ayad's certification satisfied § 3505, the Court considered the

requirement that the declaration be made by either a "custodian of a foreign record ... or another ! qi1alified per on." 18 U.S.C. § 3505(c)(2); see Abu Khatallah, 278 F. Supp. 3d at 6-7. The

Court held t at Ayad was "another qualified person" based on D.C. Circuit precedent

interpreting e qualifications of witnesses testifying pmsnant to Rule 803(6) and the

certification ·eq\1irernents of Rule 902(1 l ). Abu Khatallah, 278 F. Supp. 3d at 6-7. Specifically,

the Court exflained that a qualified witness "need not have personal knowledge of the actual creation oftl e document," jd_ at 6 (quoting Unit.9.9...$tates v. Adefehinti, 510 F.3d 319,325 (D.C.

Cir. 2007)), ut ''need only be 'familiar with the record-keeping procedures of the organization,"

id. (quoting nited States v. Baker, 458 F.3d 513, 518 (6th Cir. 2006)). Based on this precedent

and the full crnal record illuminating the process. by which lhe certification was obtained, the

Court conclu ed that Ayad was a qualified person under lhe statute, even though thel'e was no

way.fol' l1im o conduct a line-by-line comparison of the records to Libyana's database or

personally at est to the records' accuracy or how they were gathered. Id. at 7 (collecting cases).

Al-la am spies a problem with this holding. He argues that the Court followed precedent

regarding th first three elements of§ 3505(a)( 1)-that the records were kept in the regular

cot1rse of bu iness as part of the business's regular practice and were made at or near the time of

the relevant vent-and errnneously applied it to the fourth element: that the records, if not

original, wer a duplicate of the original. In other words, Al"Imam contet1ds lhat, whatever

qualification Ayad had to certify Libyana's record-keeping practices, he had no way to know

that these re ords were duplicates of actual Libym1a records crealed by those practices. More

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specifically, because Ayad did not have first-hand knowledge of how the records were acquired

or whether they were doctored in the imedn1) he could not attest that they were duplicates.

Section 3505's requfren-1enr that a witness attest ro a record being a duplicate was not

designed to be as rigid a threshold as Al-Imam suggests. Congress enacted§ 3505 as a "simple,

inexpensive substimte for the cumbersome and expensive procedures,i of live-wit11ess testimony

under Rule 803(6). H.R. Rep. 98-907) ar 3 (t984); see also Uniced Srates v. Ross. 33 F.3d 1507)

1515 (lltb Cit-. 1994); Unired Stales v. Strickland, 935 F.2d 822,830 (7th Cir. 1991). Reflecting

this purpose, several circuit courts have explained that § 3505 ''was not intended to add technical

roadblocks to the admission of foreign records, but, rather) to streamline the admission of such

records." United States v. Jawara. 474 F.3d 565, 584 (9th Cir. 2007) (quoting Strickland, 935

F.2d at 831); see also Uniled States v. Garcia Abrego, 141 F.Jd 142> 178 (5th Cfr, 1998).

Consistent with th.is purpose, § 3505 does "not change the benchmark question in this and every

situation involviug the admission of documentary evidence: do the documents bear the indicia of

reliability?" Jawara, 474 F.3d at 479 (quoting Strickland, 935 F.2d at 831). Here, the Court has

already concluded that, based on the testimony it heard from 0' Donnell) the

records are sufficiently reliable to be admitted under Rule 803(6).

Al-Imam suggests that Rule 803(6) requires that a record be "known by the witness to be

a direct product of (the] record-keeping system.'' Opp'n to MIL at 3. He implies that a witness

must either directly print or copy the record from the busines$'S files or compare it lo the original

to ensure authenticity. ld. at 6. At the Court's inotion headng, Al"Immn's counsel indicated that

a certification would be insufficient if the president of a foreign company were handed a report

from the company's accounting department and certified to its status as a duplicate based on his

experience seeing similar i-eporrs. Hr'g Tr. 27:IJ-28:14 (April 15, 2019). Yel neither Rule

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6 803(6) nor§ 3505 dem.ands such formalism. See, e.g__, Wye Oak Technology, Inc. v. Republic

of Iraq, Case No. l: l0~cv~0l l 82~RCL, 2019 WL 1746326, at *J (D.D.C. Apr. 18, 2019)

("Although [the witness] ... did not find the docum.ents herself, this does not prech.lde her from

being a qualified person .... Such individuals do not have to be the ones lo retrieve the

records."); United States v. Marcos, Case No. SSSS 87 CR. 598 (JFK), 1990 WL 37845, at *5

(S.D.N.Y. Mar. 27, 1990) ("Neither Section 3505 nor Fed R. Evid. 803(6) ... require that rhe \ business records custodian ushering docu1uents into evidence personally locate or prepare all

btisiness records in the files of the business in order to identify them as business records."). Cf.

United States v. Cban~An-Lo, 851 F.2d 547,557 (2d Cir. 1988) (upholding admission of

business record duplicates where proponent witness testified that "[w]hile he had nol compared

the specific page of the duplicate with the original, he did recognize the names and signarul'es of

the telephone operators and the handwriting, room numbers and printed format used on the

Further·, Congress based § 3505 on Rule 803(6) and instructed courts to inlerprel "the

language in subsection (a)(l )(A), (B), (C), and (D) ... in the same manner as the comparable

language in Rule 803(6) is interpreted." H.R. Rep. 98-907, at 3 (1984). While nothing in the

6 Nor do the cases Al-Imam cites establish the proposition he advances. lt is true that in United States v. Estrella, 72 F.Jd 920 (D.C. Cir. 1995) (lb!.), the D.C. Circuit explained that a proponent of phone records is generally an employee who is knowledgeable aboul the process of ''printing the data that appears in the phone bill." Id. But the focl that a proponent witness will generally know that the records came directly from a business's files is not tantamount to a requirement that she watch it be printed. Nor does United States v. Baker, 458 F.3d 513 (6th Cir. 2006), require the proponen(, as Al-Imam suggests, to compare the proffered records with originals in the absence of such knowledge. First, while the Sixth Circuit in Baker noted that a testifying postal inspector had "compared photocopies of the documents presented at trial with actual Postal Office records to ensure that they were official records," id. at 519. the opinion does not indicate that he compared the photocopies with the particular underlying records-as opposed to other records to examine indicia of authenticity. And the post1:1l inspector in Baker testified to "his familiarity with the various details of the postal records," id., siinilar to Ayad's exmni.nation of indicia of authenticity here. 13 REDACTED/ CLEARED FOR PUBUC RELEASE REDACTED I CLEARED FOR PUBLIC RELf:ASE.

text of Rule 803(6) mirrors § 3505(a)() )(D)'s requirement of certification that a document is an

original or duplicate, the Rule does require a "qualified witness" to testify; this parallels§ 3505's

"qualified person" requirement. As the Court explained in Abu Khatallah, "qualified wjtness'' is

interpreted broadly. 278 F. Supp. 3d at 6-7. Tlrns, for example, a witness is qualified to testify

that a record was rnade at or near the time of an occunence based on general familiarity with a

business's record-keeping procedures, even if rhe witness knows nothing about the creation of

the particular record itself. See, e.g.,,, United States v. Fabnbulleh, 752 F.3d 470, 478-79 (D.C.

Cir. 2014); see also 30B Fei Prac. & Proc. Evid. § 6863 (2018). Indeed, a person is q1.1ali:fied to

offer such testimony even if the records were created by another entity. See> e.~ Adefehinti,

510 F.3d at 326. There is no reason to conclude that a similarly permissive principle does not

obtai11 when assessing a person's qualifications to attest that a record is a duplicate of the

original.

Ayad helped create the format of the Libyana database and was familiar with how it

worked. Agent O'Donnell presented him with documents bearing several important indicia of

Libyana phone records. And Ayad was able to pull records for the san.1e phone number-albeit

for a different time period. That intimate familiarity with the system, combined with indicia on

the records themselves, led him to conclude that the records were indeed duplicates. Against the

strong weight of authority that a person is "qualified" to attest to when a record was created

based on general knowledge of a system and indicia on the documents themselves, the Court

concludes that Ayad was qualified to cel'tify that the records were dtiplicates of Libyana' s

orl.gl.nal records.

True, a foundational witness under Rule 80J(6) typically will have printed or copied the

records from the business's files herself. But nothing in the Rule or in§ 3505 requires st1ch

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neai·~metaphysical certainly. The circumstances of this case are no doubt unusual, if not

extraordinary. But, at bottom, the question for the Cou1t is s[raightforward: has the Government

shown, by preponderance of the evidence, that these records are reliable and authentic business

records? In Abu Khatallah, rhe Court held thar, all told, the Government had mer that burden,

and Al~Imam prnvides no new reason to reverse course. As discussed, his argument that Ayad

was not qualified to certify all of§ 3505 requirements does not withstand scrntiny in light of the

facts and the law governfrtg business records. The Court therefore again concludes that the

records are admissible.

B. The Certification

The Government also seeks to introduce Ayad's certification. Al-Imam objects,

contending that its admission would violate the Confrontation Clause of the Sixth Amendment to

7 the Constiturion. Every court thal has addressed this issue hzis concluded rhac admission of

certifications provided pursmmt to Rule 803(6)-including § 3505 and Hs analogs in Rules

902(11) and (12)-does not pose Confrontation Clause problems. See United States v. Anekwu,

695 F.3d 967,976 (9th Cir. 2012); United Stales v. Johnson, 688 FJd 494,504 (8th Cir. 2012);

United States v. Mallory, 461 F. App'x 352, 356~57 (4th Cir. 2012); United States v. Yeley-

Davis, 632 F.3d 673, 679-80 (10th Cir. 201 l); United States v. Ellis, 460 F.3d 920, 927 (7th Cii',

7 To be clear, Al-Imam does nol contend th~t the records themselves implicate the Confrontation Clause. With good reason: as the Court explained in Abu Khatallah, "(t]he Supreme Court has recognized that '[b]usiness and public records are generally admissible absent confrontation' because 'they are not testimonial."' 278 F. Supp. 3d at 11 (seco11d alreration in original) (quoting Melendez-Diaz v, Massachusetts, 557 U.S. 305, 324 (2009)).

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2006); United States v. Edwards, Case No. l l-cr-129 (CKK), 2012 WL 5522157, at *3 {D.D.C.

Nov. 15, 2012); United Stales v. Qualls, 553 F. Supp. 2d 241,246 (E.D.N.Y. 2008). 8

This Court joins them. In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the

Supreme Court held that affidavits reporting a forensic analysis wete testimonial and subject to

confrontation under the Sixth Amendment because they provided evidence against a criminal

defendant. In that case, the Court contrasted these affidavits with "a certificate authenticating an

official record---or a copy thereof," which are non-testimonial. Id. at 322. Ayad 's attestations

do not go to any fact to be proven at trial; rather, they merely lay a foundation for the

introduction of the phone records themselves. It is the phone records, and not the certification,

that will be introdt_iced as substantive evidence against Al-Imam. Ayad's certification ''do[es]

not contain any information about [the] defendant(], the relative merits of the charges against''

[the) defendant[], or any factual support for the charges." Qualls, 553 F. Supp. 2d at 246.

Al-Imam contends that these authorities are in~pposite because their reasoning hinged on

the routine nature of the certifications at issue whereas the circumstances of lhis case compel a

different result. He analogizes Ayad's certification to a hypothetical discussed by the Supreme

Court in Melendez-Diaz in which a clerk attests to an unsuccessful search for a particular record,

see 557 U.S. at 323; this, he contends, is a more apt comparison than Melendez-Diaz)s

conclusion that the Confrontation Clause ,vas not implicated by a clerk's attestation that a

8 Jn Abu K11atallah, the government did not seek to introduce the certification as evidence, apparently O\.lt of a concern that because the certification was prepared for trial, the Confrontation Clause was implicated. See H1·'g Tr. 2566:17-2567:4 (Oct. 18, 2017), ECF No. 420, United States v. Abu Khatallah, Case No. 14-141 (D.D.C.). Although Al-[mam does not focus on tbe fact that the certi ficalion was prepared for litigation, it bears 11oting lhat courts have consistently held that because certifications do not go to a fact to be proven at trial, bm rather admjssibility of the records, they are not testimonial and thus the Confrontation Clause is not implicated even though they are crea1ed for trial. See, e.g,_, Edwards, 2012 WL 5522157, at *2; Qualls, 553 F. Supp. 2d at 246. 16 r~t:OACTED i CL[/l.R''Tl FOR rusuc REL.EASE: REDACTED I CLEARED FOR PUBLIC RELEASE

document is a copy of a court record. Not so. In offel'ing the hypothetical regarding a failed

search for a record, the Supreme Court explained that the clerk's statement would be substantive

evidence against a defendant whose guilt depended on the nonexistence of the record. Id. In

other words, rhe certificate the St1p1"eme Comt discussed was testimonial inasmuch as ic went to a

fact to be proven at trial-an element of the offense. That characteristic js what likened it to the

affidavits at issue in Melendez-Diaz: certifications of forensic analysis fu1ding cocaine used in a

drug case. By contrast, Ayad's certification does not ''provid[e] evidence against a defendant,"

and parallels a clerk's affidavit alllbenticating or providing a copy of an otherwise admissible

l'ecord. Id. at 322-23 ("A clerk could by affidavit authenticate or provide a copy of an otherwise

admissible record, but could not ... create a record for the sole purpose of providing evidence

against a defendant.")

Thus, Al-Imam is incorrect that Ayad's certification, like a clerk's attestation of a failed

search, includes ''implicit(] assumptions and conclusions about the nature of the underlying

record." Opp'n to MIL at 8. This is little more than a repurposing of his primary contentions

that the certiftcacjon is insufficient and the records are problematic. Any assumptions or

conclusions go not to a facl to be proven al trial regarding Al~Imam's guilt, bul to the

authenticity of the records--a matter of rheir admissibilhy.

Likewise misplaced is Al-Imam's invocation of the D.C. Circuit's discussion in United

States v. Adefr:hinti, 510 F.Jd 319 (D.C. Cir. 2007). At the outset, lhe Circuit embraced the

logic underpinning the unanimous case law that certifications al'e admissible without implicating

the Confrontation Cfouse. Id. at 328. In so doing, the court explained that procedural safeguards

ensure thal a party can challenge the Ln1stwonhiness of records introduced via certification. The

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Circuit continued that, ''(i]n an appropriate case the challenge could presumably take the form of

calling a certificate's signatory to the stand." Id,

Al-Imam suggests tbat lhis portion of Adefehinti stands for the proposition that if the

certificates themselves lack indicia of truslworthiness, fhen the Sixlh Amendment is implicated;

he insists that this is such a case and he must have the opportunity lo cross-examine Ayad

because the "the circumstances of Ayad's cenification of the 'original or duplicate' requirement

manifestly indicates a lack of trust\>..1orthiness. "9 Opp 'n to MIL at 8. But Adefeh.inti disct1ssed

these procedmal protections lo highlight how the advance-notice requirement for cei-tificate-

based introduction of business records mirrors 803(6)'s exception for exch.iding business records

that indicate lack of trustworthiness: by requiring advanced notice, lhe opposing party can

contend that the records are 1.mtrusrworthy, including by questioning the certificate's signatOJ'y,

510 F.3d at 328. The Circuit's empluisis on procedural prolections designed to allow a party to

challenge introduction of the records is not tantamount lo a suggestion that the Sixth Amendment

requires the Goven1mem to ptJt the signatory on the stand. As discussed, the certification is not

testimonial, and Al-Imam has not anempted to secure Ayad's presence to demonstrnte purported

untrustwo1·thiness. See id. at 3'27 (''Adefehinti does not argue that the court ever thwarted any

effort to call any of the certifying c.ustodians[.]").

Moreover, the Supreme Court has clearly stated Lhar the applicability of the

Confrontation Clause does nol turn on lhe reliability or trustworthiness of the testimony to be

9 As explained, the Cottl't disagrees with this premise: Ayad examined the records, identified several unique details indicative of Libyana records, and was able to find recor~s for lhe relevant phone nun1ber in Libyana's database. Agenr O'Donnell testified credibly that he and another agent revic\.ved each line of the ccl'tification with Ayad to confirm his understanding. Ayad later compared an electronic copy of the l'ecords with Libyana's database and once again concluded the records were Libyana records, providing a renewed certification. Based on those facts 1 the Cot1rt cannot conclude thM Ayad's cerLification is Untrustworthy-let alone manifestly so--in certifying that the records were dt1plicates. ]8 i;F-J;',CTED; CLt!".RED FOR PUSLiC RELEASE

proffered. See, e.g., Bullcoming v. New Mexico, 564 U.S. 647,661 (201 l); Melendez-Diaz, 557

U.S. al 318; Crawford v. Washington, 541 U.S. 36, 62 (2004). Thus, Al-Imam cannot be correct

that Adefehinti stands for the proposition that he has the right to confront Ayad because of

perceived untrustworthiness in the certification. If that were the case, every defendant would

have a Confrontation Clause right to cross-examine a cenification's signatory, and any

exceptions would swallow the rule. That cannot be squared with Adefebinti's embrace of the

unanimous case law holding that certifications of bi1siness records do not implicate the

Confrontation Clause.

Finally, Al-Imam contends that Ayad's certification should be excluded pursuant to

Federal Rule of Evidence 403, which allows the Court to "exclude relevant evidence if its

probative value is substamia11y outweighed by·a danger of ... unfair prejudice, confusing the

isst1es, (or] misleading the jury," among other things. The n1\e "tilts, as do the r\lles as a whole,

toward the admission of evidence in close cases." United States v. Cassell, 292 F.3d 788, 795

(D.C. Cir. 2002). Al-Irnam explains that because "Ayad is not qualified to ·discuss" whether the

records were manipulated before or after they were provided to the Government, "admitting his

certification, which purports lo answer that question ... would be 1:mfoidy prejudicial." Opp'n at

9. Al-Imam's contention is premised on the notion lhar it \Vould be unfairly pi-ejudicial for a jury

to see a certification that lhe records are duplicates of Libyana records. Ayad's certification does

not attest to the acctiracy of the records or conclude thar they were not manip~\lated; it merely

lays a foundation. for what they are and why they were admitted. Nothing und1.1ly weighs in

favor of a conclusion that they are accurate or that they were not manipulated.

19 IV. Conclusion

For the foregoing reasons, lt is hereby

ORDERED 1hat tbe Government's [78] Motion in Limine is GRANTED.

SO ORDERED.

Date: May 16, 2019