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Published by Ali Akbar Khan
Islam's plan to do away with the Kaffir
Islam's plan to do away with the Kaffir

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Published by: Ali Akbar Khan on Mar 29, 2011
Copyright:Attribution Non-commercial


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Scarpa, Jr.¶s co-operation was disputed at his sentencing since it was limited inits scope and Scarpa had not supplied information about the Mafia, just about a groupof innocuous al-Qaeda members: ³While the Government¶s agreement to work with himand to evaluate his assistance without requiring him to first plead guilty was promptedby the serious nature of his initial proffer µregarding imminent terrorist acts, includingacts of violence directed at Assistant United States Attorneys or judges,¶ (Affirmation of Valerie Caproni, at 13), Ms. Caproni made clear that the Government¶s interest was notexclusively in obtaining information that might µthwart a terrorist attack.¶ Thus, at the firstmeeting with Mr. Scarpa, Ms. Caproni µasked Scarpa whether he had information on theissue of his father having a law enforcement source,¶ and told him µthat if he reallywanted to co-operate with the government it was in his interest to provide as muchinformation as he can...¶ Later, in the course of his work with the Southern DistrictAssistants and agents, Mr. Scarpa was asked to - and did obtain information that mayhave been relevant to the investigation of the terrorists, but clearly was not designed toµfoil¶ a terrorist attack. For example, after the explosion of the TWA jet on July 18, 1996,Mr. Scarpa was directed to try to obtain information from the terrorists as to whether or not they were involved.´
As assigned counsel, the undersigned represents Eyad Ismail, one of thedefendants convicted, in November 1997, of the 1993 bombing of theWorld Trade Center, in the trial of 
U.S.A. v. Ramzi Yousef 
and EyadIsmail, the appeal of which is presently pending in the United States Courtof Appeals for the Second Circuit.This letter is respectfully submitted as a motion to unseal the record of theproceedings held on May 7, 1999, in the above referenced matter, and toprovide a transcript of same to the undersigned, for purposes of determining whether any basis exists for a defense motion pursuant toF.R.CR.P. 33. [Newly discovered evidence in a motion for new trial.]Bernard Kleinman, Ramzi Yousef¶s attorney, joins this motion. The basisfor this motion and the relevant facts are as follows:As Your Honor is aware, Scarpa testified at his own trial in 1998 that hespied for the FBI on Yousef and Eyad Ismail while all were incarcerated atthe MCC awaiting their respective trials. After obtaining the minutes of Scarpa¶s testimony, counsel for Ismail and Yousef requested informationregarding Scarpa¶s allegations in letters, dated December 1, 1998, to theFBI and the United States Attorneys for the Southern and Eastern Districtsof New York, (SDUSA and EDUSA), in order to determine whether anybasis existed for a motion pursuant to F.R.Cr.P. 33, due to the Scarpamatter. The FBI and the EDUSA¶s office responded that they deferred tothe SDUSA in this matter. The SDUSA never responded to thedefendants¶ requests. After waiting seven weeks for the response that
never came, defendants moved in the Circuit Court for an Order compelling disclosure.The SDUSA opposed the motion, claiming that it was brought in the wrongforum and should be made before Judge Duffy. They also claimed that µinthe appropriate forum¶, they were µprepared to demonstrate that Scarpa¶spurported co-operation¶ was handled properly and that defendants had nobasis for relief. A Second Circuit judge denied the motion, stating that itshould µmore appropriately¶ be brought in the district court, due to thelatter¶s µfact finding capability¶. On April 8, 1999, the defendants filed amotion for disclosure and other relief in the district court. The governmentonce again failed to respond and after four weeks of waiting, defendantsrequested that Judge Duffy calendar the motion. Following defendants¶request, the SDUSA, for the first time, requested an extension of sixweeks, until June 18, 1999, in which to respond to defendants¶ motion.Defendants opposed the extension, pointing out that the government hasknown about this matter since last December and has had more thanample time in which to respond, particularly in light of its claim to theSecond Circuit that it was prepared to demonstrate that the Scarpa matter was handled properly. Over defendants¶ objections, the Court granted theextension.No government agency has ever denied or attempted to refute theallegations made by Scarpa during his trial testimony. Whatever determinations have been made regarding the quality or veracity of theinformation Scarpa provided to the FBI, it is apparent that he did spy onthe defendants and that it was done with the knowledge and assistance of the government. Defendants have been seeking information relating toScarpa¶s claims since December 1, 1998, and have met with repeatedresistance and delaying tactics by the government.Defendants respectfully submit that the complete record of the Scarpaproceedings must be available for defendants¶ inspection to assist in their investigation as to whether any of their constitutional rights were violated,and whether any basis for a Rule 33 motion exists. Judge Duffy hasalready signed the appropriate approval for C.J.A. (Criminal Justice Act)payment for the transcript. I have been informed that Your Honor hassealed the record of the November 7, 1999 proceeding, therebynecessitating this request.Since the Scarpa trial has been completed and the sealing of the recordapplied to a post trial matter, the unsealing of the record will pose nothreat to Scarpa¶s right to a fair trial. Furthermore, any needed instructionsby the Court limiting the use by counsel of said records should alleviateany valid concerns. Defendants therefore respectfully request that theCourt unseal the record of the May 7, 1999 proceedings so that the
transcript may be obtained by them. A proposed order is enclosedherewith.
 Judge Raggi responded: ³This application should be made on formal motion withnotice to both the prosecution and Mr. Scarpa¶s counsel. So ordered.´
The Government argued that the fruits of Scarpa¶s co-operation -- the so-called³Scarpa material´ -- had been the subject of two protective orders that had beenobtained
ex parte
during the 1997 World Trade Center trial. The first such order wasissued on July 9, 1997 under Rule 16(d)(1), Fed. R. Crim. P., and the second protectiveorder was obtained from the Court on August 11, 1997 under 18 U.S.C. § 3500(c).Rule 16(d)(1) provides that a Court ³may permit´ the Government to make itsshowing in support of a protective order on an
ex parte
basis. 18 U.S.C. § 3500(c)states: ³If the United States claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimonyof the witness, the court shall order the United States to deliver such statement for theinspection of the court
in camera
. Upon such delivery the court shall excise the portionsof such statement that do not relate to the subject matter of the testimony of thewitness.´The Government attempted to establish in each application that the Scarpamaterial: (1) was not relevant to the prosecution; (2) would not be used by theGovernment at trial; (3) was equally accessible to the defendants as it was theGovernment; (4) was not exculpatory under Brady; (5) did not constitute impeachmentmaterial of any witness under Giglio; and (6) did not contain statements that related tothe subject matter of any witness¶ testimony.In April 2003 the Appellate Court ruled on Bernard Kleinman¶s motion that theBrothers were not given a fair trial because they were not told of, nor were their attorneys allowed to see the Scarpa material: ³We agree that there were proceduraldefects in the handling of the Scarpa materials. The Advisory Committee Note to Fed.R. Crim. P. 16(d) (1), which governs the first protective order, explicitly states that
ex parte
protective orders and their supporting documents are to be µpreserved in therecords of the court to be made available to the appellate court in the event of anappeal.¶Similarly, Fed. R. Crim. P. 26.2(c), which governs the second protectiveorder, states that any portion of a witness¶s statement that is withheld fromthe defendant over the defendant¶s objection must be preserved µunder seal, as part of the record¶ in case the defendant appeals. The handling of these proceedings was such that the sealed documents and Scarpa¶s roleas a jailhouse informant would not have come to the attention of this Court
1. Letter Aidala to Raggi May 25, 1999.

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