Case 1:06-cr-00442-LAP          Document 117          Filed 10/23/2009      Page 1 of 5

                         SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA |                            06 Cr. 442 (LAP)
v.                            |                       The Hon. Loretta A. Preska
SYED HASHMI,                  |
                              |                       Filed via ECF
            Defendant.        |


       COMES NOW the defendant, SYED HASHMI, by and through counsel, and

moves the Court to exclude evidence concerning “Operation Crevice” and to limit

evidence concerning Omar Khyam, or, alternatively, to conduct a pretrial hearing to

determine the admissibility of any such evidence. Mr. Hashmi submits this motion

pursuant to Rules 401, 402, 403, 404, 602, 801, and 802 of the Federal Rules of

Evidence, United States v. Al-Moayad, 545 F.3d 139 (2d Cir. 2008), the Fifth and Sixth

Amendments to the United States Constitution, and other applicable caselaw.1 In support

of this motion, Mr. Hashmi states the following:


       Mr. Hashmi is charged in a four-count indictment with providing and conspiring to

provide material support to al Qaeda in violation of 18 U.S.C. § 2339B and making or receiving

 As per the Court‟s instruction, the defense is filing separate motions in limine to delineate the
issues before the Court. Each motion in limine raises separate issues, but because some of the
factual and legal arguments overlap, there is some repetition within the motions.

     Case 1:06-cr-00442-LAP          Document 117         Filed 10/23/2009       Page 2 of 5

and conspiring to make or receive a contribution of funds, goods, or services to, and for the

benefit of, al Qaeda in violation of 50 U.S.C. § 1705(b). As understood by the defense, the

government does not allege that Mr. Hashmi was a member of al Qaeda or that he provided any

weapons to al Qaeda. The government does not allege that Mr. Hashmi was involved in assisting

al Qaeda in any act of violence. At most, it is anticipated the government will allege that, in the

beginning of 2004, Mr. Hashmi lived in London and permitted the government‟s cooperating

witness to store raincoats, ponchos, and waterproof socks in Mr. Hashmi‟s apartment. Those

items allegedly were then taken by the cooperating witness to Pakistan to be delivered to al

Qaeda. The government will also allege that Mr. Hashmi permitted the cooperating witness to

borrow Mr. Hashmi‟s cell phone to make calls to coconspirators and that Mr. Hashmi gave the

cooperating witness money to purchase a plane ticket to Pakistan.

       It is anticipated that the government‟s cooperating witness Junaid Babar will testify that

he conspired with Omar Khyam to bring money and/or socks, ponchos, and raincoats to Pakistan

to be given to a member of al Qaeda. Omar Khyam is not charged in the instant indictment and

is not named in the indictment as a coconspirator.

       Omar Khyam currently is serving a life sentence in England after being convicted with

four other men of planning to use 1,300 lbs. of ammonium nitrate fertilizer to make bombs to be

exploded in England. The police investigation that preceded Khyam‟s arrest, called Operation

Crevice, and the ensuing trial involved unprecedented amounts of resources. Some of the

numbers are as follows:

               • 33,800 man hours of surveillance;
               • 24,000 hours of video evidence;
               • 7,600 people involved in the investigation, including police, witnesses,
                       and security services;
               • 3,600 witness statements;
               • 960 officers involved in the arrests;

     Case 1:06-cr-00442-LAP          Document 117         Filed 10/23/2009      Page 3 of 5

               • 173 interviews taken;
               • 80 computers seized;
               • 50 cars, homes, and business premises searched; and
               • 18 people arrested.

Times On Line, “Five Given Life for Fertiliser Bomb Terror Plot,” April 30, 2007 (attached as

Exhibit A). Khyam was tried with six other men, two of whom were acquitted. That trial,

known as the Crevice trial, “was the longest and most expensive criminal case in Britain, costing

£50 million and lasting more than a year.” Id. Junaid Babar, the main witness slated to testify

against Mr. Hashmi, was the primary witness for the crown prosecution in the Crevice trial and

testified for nearly a month.

       The British government never charged Mr. Hashmi with any involvement in the Crevice

matter and has never made any allegation that Mr. Hashmi was involved in any way, even while

Mr. Hashmi remained incarcerated for a year in Belmarsh prison on British soil pending his

extradition to the United States.


       The government has indicated that it will introduce evidence at trial that Khyam was a

coconspirator of Babar and Mr. Hashmi. It is the defense position that the Crevice conspiracy is

completely separate and independent from the charged conspiracy that will be tried in Mr.

Hashmi‟s case. While actions of coconspirators undertaken in furtherance of the charged

conspiracy are as a general matter admissible, there is a real danger that improper evidence from

the Crevice conspiracy could permeate Mr. Hashmi‟s trial causing great prejudice to Mr.


       Without close guidance from the Court, evidence related to the Crevice matter could spill

in front of the jury in violation of Rules 401, 402, 403, 404, 602, 801, and 802. From a logistical

     Case 1:06-cr-00442-LAP          Document 117         Filed 10/23/2009       Page 4 of 5

perspective, there is no way that Mr. Hashmi can prepare to defend against the vast amount of

evidence collected in the Crevice matter without sufficient notice.

       Evidence surrounding individuals and events implicated in the Crevice matter

would likely run afoul of Rule 403. Like the 9/11 attack, the Crevice matter would elicit

strong hostility from the jury and would impair the jury‟s ability to evaluate the evidence

fairly and impartially. Reference to individuals who were not coconspirators and

incidents that were not part of the conspiracy for which Mr. Hashmi is charged would

have little or no probative value yet would greatly prejudice Mr. Hashmi. Pursuant to

Rule 403, “the district court must make a „conscientious assessment‟ of whether unfair

prejudice substantially outweighs probative value.” United States v. Al-Moayad, 545

F.3d 139, 160 (2d Cir. 2008) (citations omitted). Such an assessment reveals that any

marginal probative value of the government‟s proffered evidence would be outweighed

by the “danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time or needless presentation of cumulative

evidence.” Fed. R. Evid. 403.

       All of the concerns discussed by the Second Circuit in Al-Moayad are present

here; thus, the Court should undertake a careful review of all evidence relating to the

Crevice matter and Omar Khyam before such evidence is placed before the jury.


       For all the foregoing reasons, it is respectfully requested that the Court exclude

evidence concerning Operation Crevice and Omar Khyam. In the alternative, the Court

should conduct a pretrial hearing to determine the admissibility of any such evidence

pursuant to Rules 104(a), 401, 402, 403, 404, 602, 801, and 802 of the Federal Rules of

     Case 1:06-cr-00442-LAP          Document 117          Filed 10/23/2009       Page 5 of 5

Evidence. Failure to provide the requested relief will result in Mr. Hashmi being

deprived of his rights to due process, to equal protection, to confrontation, and to receive

a fair trial pursuant to the Fifth and Sixth Amendments to the United States Constitution.

       Dated: October 23, 2009

                                              Respectfully submitted,

                                              SEAN M. MAHER
                                              SM 7568
                                              KHURRUM B. WAHID
                                              Counsel for the Defendant
                                              Wahid, Vizcaino & Maher LLP
                                              122 E. 42nd Street, Suite 1616
                                              New York, NY 10168
                                              (212) 661-5333
                                              (212) 661-5255 fax

                                              ANTHONY L. RICCO
                                              DAVID A. RUHNKE
                                              Counsel for the Defendant


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