* United States v. Kashmiri (N.D. Ill. Apr. 1, 2011) (exclusion of proposed defense of public authority)
This is a short opinion concerning an interesting issue, arising out of the prosecution of a defendant linked to the Mumbai massacre among other things. The defendant sought to advance an interesting form of “public authority” defense. Specifically, he argued that he was directed to engage in certain conduct by Pakistan’s ISI, that Pakistan has immunity under the FSIA, and though this immunity might not apply to him directly it nonetheless interacts with the concept of the public authority defense so as to negate the scienter elements of the charged offenses. Judge Leinenweber rejected this argument and excluded the defense for the following reasons:
Defendant’s proposed defense that Pakistani government and ISI officials sanctioned his violations of U.S. federal law is objectively unreasonable. The parties agree that no evidence exists that Defendant relied on representations from a U.S. federal official–or a party with apparent authority as a federal official–to engage in his alleged illegal activities. Defendant acted not in Pakistan or India, but rather in the United States. He cites no authority holding that a foreign government official can sanction an individual living and acting in the United States to violate U.S. federal law. Regardless of whether Defendant believed Headley conducted surveillance on behalf of the ISI or Lashkar in Mumbai, his argument that a nonfederal official can have actual or apparent authority to exempt him from violating a federal law fails. See Baker, 438 F.3d at 754-56.
The interesting thing about that is that the judge emphasizes the defendant’s presence in the United States, as if the outcome somehow might have been different had he been abroad at the time. Note too that the judge did not address the argument that FSIA does not confer immunity even on actual foreign government officials when it comes to criminal prosecution. I’ve not looked into this closely for some time, but at least a few years ago I believe courts were divided on that question. See here, for example. And speaking of interesting “public authority” cases implicating foreign relations and national security that happen to be pending in Chicago, check out this Mexican cartel related defense motion: http://www.borderlandbeat.com/2011/04/sinaloa-cartels-el-vicentillo-zambada.html.
In any event, the full opinion in the Mumbai case follows:
United States District Court,
UNITED STATES of America, Plaintiff,
Ilyas KASHMIRI, et al. (Tahawwur Hussain Rana), Defendant.
No. 09 CR 830-4.
April 1, 2011.
MEMORANDUM OPINION AND ORDER
HARRY D. LEINENWEBER, District Judge.
*1 Before the Court are two Motions from the Government: (1) a Motion in Limine to Exclude Defendant Tahawwur Hussain Rana’s (hereinafter, the "Defendant") Public Authority Defense; and (2) a Motion to Quash Trial Subpoenas that Defendant served on the Federal Bureau of Investigation (the "FBI") and Department of State (the "State Department"). For the reasons stated herein, the Court grants both of these motions.
Defendant has been charged in three counts of a 12-count superseding indictment for providing material support to terrorists and foreign terrorist organizations, brought under 18 U.S.C. §§ 2339A, 2339B, in connection with the November 2008 attacks in Mumbai, India, by the Pakistan-based group Lashkar e Tayyiba ("Lashkar"), and a plot to attack a newspaper building in Denmark. His trial is scheduled to begin in this Court on May 16, 2011.
In compliance with Federal Rule of Criminal Procedure 12.3(a) (1), Defendant provided notice on January 2, 2011, that he intends to assert a defense that he acted pursuant to his actual or believed exercise of public authority on behalf of the government of Pakistan and Pakistan’s Inter-Services Intelligence Agency (the "ISI"). A week after providing notice of this intended defense, Defendant issued subpoenas under Federal Rule of Criminal Procedure 17(c) to the FBI and Department of State, both of which request: "Any and all … cables originating from or transmitted to India, Pakistan or the United States, regarding Tahawwur Hussain Rana; Daood Gilani a/k/a David Coleman Headley; Pakistan Inter-Services Intelligence Officers Major Iqbal, Lieutenant Colonel Shah and Major Samir Ali; and any connections between the Pakistan Inter-Services Intelligence (the "ISI") and Lashkar e Tayyiba." The Government subsequently filed two motions: (1) a Motion in Limine to exclude the intended public authority defense; and (2) a Motion to Quash the FBI and Department of State subpoenas.
II. LEGAL STANDARD
When a motion in limine involves the propriety of an affirmative defense, the trial court accepts as true evidence proffered by the defendant. See United States v. Tokash, 282 F.3d 962, 967 (7th Cir.2002). The defendant, however, "must present more than a scintilla of evidence that demonstrates that he can satisfy the legal requirements for asserting the proposed defense." Id. (internal quotation omitted). If, however, as a matter of law the defendant’s evidence does not support an affirmative defense, the court should preclude this defense from being presented at trial. See United States v. Baker, 438 F.3d 749, 753 (7th Cir.2006). Further, a district court possesses discretion in deciding whether to grant or deny a motion to quash a subpoena. See Griffin v. Foley, 542 F.3d 209, 223 (7th Cir.2008).
A. Exclude Public Authority Defense
Defendant’s proposed defense is that his alleged illegal acts of providing material support to terrorists–at least those related to the Mumbai attacks– were done at the behest of the Pakistani government and the ISI, not the Lashkar terrorist organization. He argues that he is entitled to a public authority defense because he acted under the authority–whether actual or apparent–of the Pakistani government and the ISI. He finds support for this defense from grand jury testimony of Co-Defendant David Headley, who has pled guilty to the counts against him in the superseding indictment and whom the Government will most likely call as a witness in its case against Defendant. For example, Headley provided the following testimony before the grand jury:
*2 During my trip to Chicago, I told [Defendant] about my meetings with Sajid and others in Lashkar. I also told him about my meetings with Major Iqbal, and told him how I had been asked to perform espionage work for ISI. I even told him some of the espionage stories that Major Iqbal had told me. I told [Defendant] about my assignment to conduct surveillance in Mumbai. I asked [Defendant] if it was okay with him that I set up a First World immigration office in Mumbai. I explained to him that the immigration office would provide a cover story for why I was in Mumbai. I told him that Major Iqbal would be providing money to pay for the expenses associated with setting up and operating the office. [Defendant] agreed.
Def.’s Resp. 3. Defendant argues that the ISI has authority to act in India to protect Pakistan’s national interests. Therefore, he contends, he relied on a public authority, one that he argues is immune from criminal prosecution in United States courts under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602, et seq., when he engaged in activities such as allowing Headley to open a First World immigration office in Mumbai. This reliance, Defendant argues, negates the scienter required for him to be found guilty of the three charges.
Defendant centers his argument on the interplay between FSIA and the public authority defense. The Court, however, need not analyze whether FSIA encompasses immunity from criminal prosecution, or if the public authority defense is limited to actual authority or extends to apparent authority. Defendant’s arguments on these issues contain a fatal flaw. Simply put, Defendant cannot rely on the authority of a foreign government agency or official to authorize his violations of United States federal law. See United States v. Rector, 111 F.3d 503, 506-07 (7th Cir.1997); overruled on other grounds, United States v. Wilson, 169 F.3d 418, 427 n. 9 (7th Cir.1999).
The Seventh Circuit Pattern Criminal Federal Jury Instructions set forth the factors of the public authority defense:
A defendant who acts in reliance on public authority does not act knowingly … and should be found not guilty.
A defendant acts under public authority if:
(1) that defendant is affirmatively told that his/her conduct would be lawful;
(2) the defendant is told this by an official of the [United States] government; [and]
(3) the defendant actually relies on what the official tells him/her in taking the action; [and,