11-320-cr
United States v. Ghailani




                                    In the
              United States Court of Appeals
                            For the Second Circuit
                                    ________

                               AUGUST TERM, 2012
                                   ________
                                 No. 11-320-cr

                            UNITED STATES OF AMERICA,
                                     Appellee,

                                       v.

AHMED KHALFAN GHAILANI, a/k/a FUPI, a/k/a ABUBAKARY KHALFAN
                  AHMED GHALILIANI,
                  Defendant-Appellant,

       WADIH EL HAGE, a/k/a ABDUS SABBUR, FAZUL ABDULLAH
   MOHAMMED, a/k/a HARUN FAZHL, a/k/a FAZHL ABDULLAH, a/k/a
  FAZHL KHAN, MOHAMED SADEEK ODEH, a/k/a ABU MOATH, a/k/a
   NOURELDINE, a/k/a MARWAN, a/k/a HYDAR, MOHAMED RASHED
 DAOUD AL-’OWHALI, a/k/a KHALID SALIM SALEH BIN RASHED, a/k/a
  MOATH, a/k/a ABDUL JABBAR ALI ABEL-LATIF, USAMA BIN LADEN,
 a/k/a USAMAH BIN-MUHAMMAD BIN-LADIN, a/k/a SHAYKH USAMAH
BIN-LADIN, a/k/a MUJAHID SHAYKH, a/k/a HAJJ, a/k/a QAQA, a/k/a THE
  DIRECTOR, MUHAMMAD ATEF, a/k/a ABU HAFS, a/k/a ABU HAFS EL
 MASRY, a/k/a ABU ABU HAFS EL MASRY E KHABIR, a/k/a TAYSIR, a/k/a
   AHEIKH TAYSIR ABDULLAH, MUSTAFA MOHAMED FADHIL, a/k/a
 MUSTAFA ALI ELBISHY, a/k/a HUSSEIN, a/k/a HASSAN ALI, KHALFAN
 KHAMIS MOHAMED, a/k/a KHALFAN KHAMIS, SHEIKH AHMED SALIM
2                                                                       No. 11-320-cr




 SWEDAN, a/k/a SHEIKH BAHAMADI, a/k/a AHMED ALLY, MAMDOUH
  MAHMUD SALIM, a/k/a ABU HAJER AL IRAQI, a/k/a ABU HAJER, ALI
MOHAMED, a/k/a OMAR, a/k/a ALI ABDELSEOUD MOHAMED, a/k/a ABU
  OMAR, a/k/a HAYDARA, a/k/a TAYMOUR ALI NASSER, a/k/a AHMED
 BAHAA ADAM, AYMAN AL ZAWAHIRI, a/k/a ABDEL MUAZ, a/k/a THE
    DOCTOR, KHALED AL FAWWAZ, a/k/a ABU OMAR, a/k/a KHALED
ABDUL KHALED ABDUL RAHMAN, a/k/a HAMAD AL FAWWAZ, HAMAD,
   IBRAHIM EIDAROUS, a/k/a IBRAHIM H.A. EIDAROUS, a/k/a DAOUD,
   a/k/a ABU ABDULLAH, a/k/a IBRAHIM, BARY, a/k/a ADEL M.A.A.A.
 BARY, a/k/a ABBAS, a/k/a ABU DIA, a/k/a ADEL, SAIF AL ADEL, a/k/a
SAIF, ABDULLAH AHMED ABDULLAH, a/k/a ABU MOHAMED EL MASRY,
a/k/a SALEH, a/k/a ABU MARIUM, MUHSIN MUSA MATWALLI ATWAH,
a/k/a ABDEL RAHMAN AL MUHAJER, a/k/a ABDEL RAHMAN, ANAS AL
  LIBY, a/k/a NAZIH AL RAGHIE, a/k/a ANAS AL SEBAI, L’HOUSSIANE
    KHERCHTOU, a/k/a ABU TALAL, a/k/a TALAL, a/k/a YUSUF, a/k/a
  JOSEPH, a/k/a JAMAL, MOHAMED SULEIMAN AL NALFI, a/k/a NALFI,
a/k/a ABU MUSAB, a/k/a MOHAMED SULEIMAN ADAM, JAMAL AHMED
 MOHAMMED AL-BADAWI, a/k/a ABU ABED AL RAHMAN AL-BADAWI,
          FAHD AL-QUSO, a/k/a ABU HATHAYFAH AL-ADANI,
                            Defendants.*
                             ________

               Appeal from the United States District Court
                 for the Southern District of New York.
               No. 1:98-cr-1023-9 ― Lewis A. Kaplan, Judge.
                                 ________

                             ARGUED: MAY 8, 2013
                           DECIDED: OCTOBER 24, 2013
                                  ________

    * The Clerk of Court is directed to amend the official caption in this case to conform
to the listing of the parties above.
3                                                         No. 11-320-cr




Before: LEVAL, CABRANES, and PARKER, Circuit Judges.
                            ________

      Defendant Ahmed Khalfan Ghailani appeals his judgment of
conviction, after a trial by jury in the United States District Court for
the Southern District of New York (Lewis A. Kaplan, Judge), of
conspiring to bomb the United States Embassies in Nairobi, Kenya,
and Dar es Salaam, Tanzania. These bombings killed over two
hundred people, and injured thousands more.

        This appeal presents a question arising from the government’s
efforts to obtain actionable and time-sensitive intelligence necessary
to thwart acts of terror, while still bringing those charged with
committing crimes of terrorism against Americans to justice in an
orderly fashion under the laws of our country. We are asked
whether the Speedy Trial Clause of the Sixth Amendment of the
Constitution prevents the United States from trying, on criminal
charges in a district court, a defendant who was held abroad for
several years by the Central Intelligence Agency (“CIA”) and the
Department of Defense while his indictment was pending. We also
address whether the District Court erred in giving the jury a
“conscious avoidance” instruction, and in sentencing the defendant
to life in prison.

       First, we conclude that, based upon a balancing of the factors
set forth by the Supreme Court, the District Court correctly
determined that, in the circumstances presented here, there was no
violation of Ghailani’s right under the Speedy Trial Clause of the
Sixth Amendment. Second, we conclude that the District Court did
not err in so charging the jury. Third, we conclude that a sentence of
life imprisonment, based on a conviction for conspiring to destroy
United States buildings and property and directly or proximately
4                                                      No. 11-320-cr




causing the deaths of 224 people, was neither procedurally nor
substantively unreasonable.

      Affirmed.

                              ________

                  PETER ENRIQUE QUIJANO (Nancy Lee Ennis, Anna
                  N. Sideris, on the brief), Quijano & Ennis, P.C.,
                  New York, NY, for Defendant-Appellant.

                  MICHAEL FARBIARZ, Assistant United States
                  Attorney (Harry A. Chernoff, Nicholas J. Lewin,
                  Sean S. Buckley, Katherine Polk Failla, Assistant
                  United States Attorneys, on the brief), for Preet
                  Bharara, United States Attorney for the Southern
                  District of New York, New York, NY, for Appellee.

                              ________

JOSÉ A. CABRANES, Circuit Judge:

      Defendant Ahmed Khalfan Ghailani appeals his judgment of
conviction, entered January 25, 2011, after a trial by jury in the
United States District Court for the Southern District of New York
(Lewis A. Kaplan, Judge), of conspiring to bomb the United States
embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. The
bombings, which occurred simultaneously on August 7, 1998, killed
over two hundred people, and injured thousands more.

       This appeal presents a question bound to arise from the
government’s efforts to obtain actionable and time-sensitive
intelligence necessary to thwart acts of terror, while still bringing
those charged with committing crimes of terrorism against
Americans to justice in an orderly fashion under the laws of our
5                                                                      No. 11-320-cr




country. We are asked whether the Speedy Trial Clause of the Sixth
Amendment of the Constitution prevents the United States from
trying, on criminal charges in a district court, a defendant who was
held abroad for several years by the Central Intelligence Agency
(“CIA”) and the Department of Defense while his indictment was
pending.1

       To determine whether trial delays caused a violation of a
defendant’s constitutional speedy trial right, we must, in each case,
consider the public and private interests at stake by balancing four
factors set forth by the Supreme Court. Those factors are: (1) the
length of the delay; (2) the reasons for the delay; (3) whether the
defendant asserted his right in the run-up to the trial; and (4)
whether the defendant was prejudiced by the failure to bring the
case to trial more quickly.

        We conclude that, based upon a balancing of these four
factors, the District Court correctly determined that, in the
circumstances presented here, there was no violation of Ghailani’s
right under the Speedy Trial Clause of the Sixth Amendment. In so
holding, we reject Ghailani’s claim that the government may never,
no matter how expeditiously it acts, bring a defendant to trial after
detaining him for national security purposes. We also reject
Ghailani’s argument that the delay occasioned by national security
concerns and preparations for trial before a military commission was
so excessive as to bar the government from thereafter proceeding to
trial. For well over a century, the Supreme Court has repeatedly held
that the government may purposely delay trials for significant
periods of time, so long as, on balance, the public and private
interests render the delay reasonable. We also reject Ghailani’s

    1We note at the outset that Ghailani claims only violation of the Speedy Trial Clause
of the Constitution, not of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, passed by
Congress in 1974.
6                                                                            No. 11-320-cr




argument that he was prejudiced for constitutional speedy trial
purposes by his treatment during his detention by the CIA. The
Speedy Trial Clause protects defendants against prejudice caused by
delays in their trials, not against the harms of interrogation.

      Additionally, we address whether the District Court erred in
(1) giving the jury a “conscious avoidance” instruction; and (2)
sentencing the defendant to life in prison.

       As for the conscious avoidance instruction, which permitted
the jury to convict Ghailani if he purposely avoided confirming the
likely goals of the criminal conspiracy, Ghailani argues that there
was insufficient evidence for a rational juror to infer that he was
aware of the likelihood that his efforts would contribute to the
bombing of American embassies. This claim has no merit, and we
hold that the District Court did not err in so charging the jury.

      As for Ghailani’s sentence, we conclude that a sentence of life
imprisonment, based on a conviction for conspiring to destroy
United States buildings and property and directly or proximately
causing the deaths of 224 people, was neither procedurally nor
substantively unreasonable.

                                   BACKGROUND2

     On August 7, 1998, operatives of al Qaeda3 simultaneously
detonated explosives at the United States embassies in Nairobi,
    2 Because Ghailani appeals from a judgment of conviction entered after a jury trial,
we draw the facts from the evidence presented at trial, viewed in the light most favorable
to the government. See, e.g., Parker v. Matthews, 132 S. Ct. 2148, 2152 (2012); United States v.
Rosen, 716 F.3d 691, 694 (2d Cir. 2013). To the extent that Ghailani challenges the District
Court’s denial of his motion to dismiss the indictment, we rely on the facts found by the
District Court, with the exception of any clearly erroneous findings. See United States v.
Daley, 702 F.3d 96, 99-100 (2d Cir. 2012).
    3   We have previously explained that
7                                                                        No. 11-320-cr




Kenya, and Dar es Salaam, Kenya. In Nairobi, the bombs killed two
hundred and thirteen people, and injured approximately four
thousand more. In Dar es Salaam, eleven died and eighty-five were
injured.4

       Sometime in 1996 or 1997, Ghailani and three other men—
Fahid Mohammad Ally Msalam (“Msalam”), Sheikh Ahmed
Swedan (“Swedan”), and Khalfan Khamis Mohamed (“K.K.
Mohamed”)—were recruited by al Qaeda to serve as its “East Africa
crew,” including serving as the logistics team for the bombings of
the two American embassies. During 1997 and 1998, until the time of
the bombings, Ghailani lived in Dar es Salaam. In the months
leading up to the bombings, Ghailani procured a number of items
necessary for building an explosive device on the back of a truck.
First, Ghailani, accompanied by Msalam, purchased seven large
metal tanks filled with flammable gas from two welders in Dar es
Salaam. Second, Ghailani, this time accompanied by Swedan,
bought a Nissan Atlas refrigeration truck from a broker with whom
he was friendly. After the refrigeration unit had been removed, he

    [a]l Qaeda is the most notorious terrorist group presently pursuing jihad against
    the United States. In February 1998, its leaders, including Osama bin Laden and
    Ayman al Zawahiri, issued an infamous fatwa (religious decree) pronouncing it
    the individual duty of every Muslim to kill Americans and their allies—whether
    civilian or military—in any country where that could be done. For a detailed
    discussion of this fatwa and al Qaeda’s terrorist activities up to 2004—including
    the 1998 bombings of American embassies in Kenya and Tanzania, which killed
    224 people; the October 2000 bombing of the USS Cole, which took 17 lives; and
    the September 11, 2001 airplane attacks on the World Trade Center and the
    Pentagon, which killed 2,973 persons—see The National Commission on
    Terrorist Attacks Upon the United States, The 9/11 Commission Report (2004).
United States v. Farhane, 634 F.3d 127, 132 n.4 (2d Cir. 2011).
    4 For a detailed description of these events and the procedural history of the
convictions of Ghailani’s coconspirators, see In re Terrorist Bombings of U.S. Embassies in
East Africa, 552 F.3d 93, 103-08 (2d Cir. 2008). We recount here only the facts directly
relevant to this appeal.
8                                                                    No. 11-320-cr




had a welder install a stand for two large batteries, which was
enclosed in a lockable compartment, and make several other
unusual modifications to the truck. Finally, Ghailani hid blasting
caps—small explosive devices that are often used to detonate larger
secondary explosives—in a locked armoire in his home. These
materials were ultimately brought to a private compound in Dar es
Salaam, which had been rented by K.K. Mohamed and another
conspirator, where the explosives were assembled and the Nissan
Atlas was outfitted for its purpose.5

       Ghailani did not remain in Dar es Salaam to witness the fruits
of his labor. Just a day prior to the bombings, Ghailani, using a false
passport, boarded a plane with several al Qaeda leaders and flew to
Karachi, Pakistan. Several of Ghailani’s coconspirators, were
captured soon after the bombings. See generally In re Terrorist
Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 101-08 (2d Cir.
2008). Although Ghailani was not among those captured, he was
indicted along with them on December 16, 1998. The captured
coconspirators were subsequently tried and convicted in the United
States District Court for the Southern District of New York (Leonard
B. Sand, Judge) for their roles in the bombings.

      Although Ghailani was indicted along with his associates in
1998, he eluded authorities for the next six years. Throughout that
time—which included the attacks on the World Trade Center on
September 11, 2001—Ghailani remained an active and engaged
member of al Qaeda. He was finally captured abroad on July 25,
2004, and was held outside of the United States for approximately
two years by the CIA. Judge Kaplan made the following factual
findings regarding this period:

    5For a more complete accounting of the extensive evidence demonstrating Ghailani’s
role in the planning and preparation of the embassy bombings, see United States v.
Ghailani, 761 F. Supp. 2d 167, 173-84 (S.D.N.Y. 2011).
9                                                       No. 11-320-cr




             Ghailani was detained and interrogated by the
      CIA outside of the United States for roughly two years.
      Many details of the [CIA’s interrogation program] and
      its application to specific individuals remain classified.
      Nevertheless, it may be said that it sought to obtain
      critical, real-time intelligence about terrorist networks
      and plots by using a combination of so-called
      “standard” and “enhanced” interrogation techniques to
      question detainees thought to have particularly high-
      value intelligence information. These techniques were
      “designed to psychologically ‘dislocate’ the detainee,
      maximize his feeling of vulnerability and helplessness,
      and reduce or eliminate his will to resist [the United
      States government’s] efforts to obtain critical
      intelligence.”

             An individualized interrogation program was
      developed and approved for each detainee based on the
      unique     personal,    physical,   and    psychological
      characteristics of that individual. Not all interrogation
      techniques were used on all detainees. To the extent
      that they are relevant to the disposition of this motion,
      the details of Ghailani’s experience in the CIA
      [interrogation program]—in particular, the specific
      interrogation techniques applied to him—are described
      in [a separate classified supplement]. Suffice it to say
      here that, on the record before the Court and as further
      explained in the [classified supplement], the CIA
      Program was effective in obtaining useful intelligence
      from Ghailani throughout his time in CIA custody.

United States v. Ghailani, 751 F. Supp. 2d 515, 522-23 (S.D.N.Y. 2010)
(quoting the Draft Office of Medical Services Guidelines on Medical
10                                                                         No. 11-320-cr




and Psychological Support to Detainee Interrogations) (footnotes
omitted) (second alteration in original).6

      In September 2006, the CIA transferred Ghailani to the
custody of the Department of Defense at Guantanamo Bay. In March
2007, a Combatant Status Review Tribunal (“CSRT”), comprised of
three commissioned officers, held a hearing to review whether
Ghailani was properly being held as a so-called “enemy
combatant,”7 and soon after, confirmed Ghailani’s status as an

     6The District Court made additional findings, relating to the details of Ghailani’s
interrogation and the information it yielded, in a separate classified supplement to its
opinion denying Ghailani’s motion to dismiss the indictment under the Speedy Trial
Clause. See Ghailani, 751 F. Supp. 2d at 522 n.27. Because these facts are not necessary to
our resolution of the issues before us in this appeal, we need not delve further into them
here.
     7In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court considered whether
the Congressional resolution known as the “Authorization for Use of Military Force”
(AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001), permitted the detention of a citizen who
qualified as an enemy combatant. Although the Supreme Court observed that “the
Government ha[d] never provided any court with the full criteria that it uses in
classifying individuals as [enemy combatants],” it accepted that the classification applied
to “an individual who . . . was part of or supporting forces hostile to the United States or
coalition partners in Afghanistan and who engaged in an armed conflict against the
United States there.” Hamdi, 542 U.S. at 516 (plurality opinion) (internal quotation marks
omitted). A plurality of the Supreme Court “conclude[d] that detention of individuals
falling into the limited category [of enemy combatants], for the duration of the particular
conflict in which they were captured, is so fundamental and accepted an incident to war
as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the
President to use.” Id. at 518; but see id. at 521 (plurality opinion) (stating that we “agree
that indefinite detention for the purpose of interrogation is not authorized” and that “[i]f
the practical circumstances of a given conflict are entirely unlike those of the conflicts
that informed the development of the law of war” the legal basis for the prolonged
detention of enemy combatants may “unravel”). The plurality qualified this detention
authority, however, by “hold[ing] that a citizen-detainee seeking to challenge his
classification as an enemy combatant must receive notice of the factual basis for his
classification, and a fair opportunity to rebut the Government’s factual assertions before
a neutral decisionmaker,” id. at 533, and specifically found it “notable that military
regulations already provide for such process in related instances, dictating that tribunals
11                                                                      No. 11-320-cr




enemy combatant. Almost exactly one year later, in March 2008, the
government brought charges against Ghailani before a military
commission for violations of the laws of war, in connection with the
bombing of the embassy in Dar es Salaam and with his efforts as a
part of al Qaeda in the years during which he remained a fugitive.

       Military counsel was appointed for Ghailani in April 2008. In
the months that followed, he worked separately with civilian
lawyers to file in federal court two petitions—in May and in July
2008—for writs of habeas corpus. In neither petition did Ghailani
refer to the right to a speedy trial, much less claim a violation of that
right. In October 2008, Ghailani was arraigned before the Military
Commission, and motion practice began. These proceedings only
lasted a few months, however, because soon after taking office,
President Obama suspended the military commissions by executive
order.

        Several months later, in March 2009, Ghailani asserted, for the
first time, a right to a speedy trial in a third petition for habeas
corpus, this time filed pro se in the Southern District of New York. In
May, the government announced that it would try Ghailani in the
Southern District of New York on the original indictment of 1998.
He was then brought to New York and arraigned on June 9, 2009.


be made available to determine the status of enemy detainees who assert prisoner-of-war
status under the Geneva Convention,” id. at 538 (citing Headquarters Depts. of Army,
Navy, Air Force, and Marine Corps, Enemy Prisoners of War, Retained Personnel,
Civilian Internees and Other Detainees, Army Regulation 190-8, ch. 1, § 1-6 (1997)
(“Army Regulation 190-8”)); see also id. at 541, 553 (Souter, J., concurring in part,
dissenting in part, and concurring in the judgment) (finding Hamdi’s detention
“forbidden” by statute but concurring in the judgment so that Hamdi may at least “offer
evidence that he is not an enemy combatant”). Soon after, the Department of Defense
created the CSRTs—which it based, at least in part, on Army Regulation 190-8—to permit
all detainees an opportunity for review of their status as enemy combatants. See Ghailani,
751 F. Supp. 2d at 524.
12                                                                        No. 11-320-cr




       Ghailani, represented by counsel, subsequently moved to
dismiss the indictment on the ground that the Speedy Trial Clause of
the Sixth Amendment precluded the government from proceeding
against him, inasmuch as he had been held for nearly five years by
the United States before being presented for trial. In a careful and
thoughtful Opinion issued on July 13, 2010, the District Court denied
the motion. Specifically, Judge Kaplan concluded that,
“[c]onsidering all of the circumstances, particularly the lack of
significant prejudice of the sort that the Speedy Trial Clause was
intended to prevent, the delay in this case did not materially infringe
upon any interest protected by the right to a speedy trial.” Ghailani,
751 F. Supp. 2d at 541.

       Trial began on October 12, 2010. After approximately four
weeks of trial and a week of deliberation, the jury convicted
Ghailani on one count of conspiring to destroy United States
buildings and property, in violation of 18 U.S.C. § 844(f), (n). In so
doing, the jury made a specific finding that Ghailani’s conduct
directly or proximately caused death to a person other than a
conspirator.8 The jury found Ghailani not guilty on an additional 281
counts. On January 25, 2011, the District Court sentenced Ghailani to
a term of life in prison, and ordered him to pay restitution in the
amount of nearly $34 million.

                                    DISCUSSION

      Ghailani now argues that we must reverse his conviction for
two reasons. First, he contends that the District Court should have


     8Title 18 U.S.C. § 844(f)(3) provides that any person who conspires to destroy United
States buildings and property “and as a result of such conduct directly or proximately
causes the death of any person, including any public safety officer performing duties,
shall be subject to the death penalty, or imprisoned for not less than 20 years or for life,
fined under this title, or both.”
13                                                        No. 11-320-cr




granted his motion to dismiss the indictment on the basis of the
Speedy Trial Clause. Second, he claims that the District Court erred
by giving the jury a so-called “conscious avoidance” charge and,
furthermore, that the charge given was flawed. Additionally,
Ghailani protests that a life term was an unreasonable sentence
under the circumstances. We address each of these three claims in
turn.

                     A. The Speedy Trial Clause

                          1. Applicable Law

      The Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy . . . trial.”
Though apparently straightforward, the contours of this right have
proven difficult to describe, largely because what may be considered
“speedy” is necessarily dependent on the nature of the trial and the
parties’ interests in the given case. Indeed, in attempting to define
the meaning of the word “speedy” under the Sixth Amendment, the
Supreme Court has found it “‘amorphous,’ ‘slippery,’ and
‘necessarily relative.’” Vermont v. Brillon, 556 U.S. 81, 89 (2009)
(quoting Barker v. Wingo, 407 U.S. 514, 522 (1972)).

        Much of the difficulty derives from the fact that the right to a
speedy trial protects not just the interests of the defendant, but also
the “societal interest in providing a speedy trial which exists
separate from, and at times in opposition to, the interests of the
accused.” Barker, 407 U.S. at 519. Over time, the Supreme Court has
distilled the defendant’s interest in a speedy trial to three
ingredients: “to prevent undue and oppressive incarceration prior to
trial, to minimize anxiety and concern accompanying public
accusation and to limit the possibilities that long delay will impair
the ability of an accused to defend himself.” United States v. Loud
Hawk, 474 U.S. 302, 312 (1986) (internal quotation marks omitted).
14                                                                         No. 11-320-cr




Similarly, the public has an interest in quickly bringing defendants
to trial to prevent a backlog of cases that might permit dangerous
criminals to linger unsupervised for extended periods of time while
on bail, delay rehabilitation, and otherwise hinder the criminal
justice system. See Barker, 407 U.S. at 519-20. On the other hand, “in
large measure because of the many procedural safeguards provided
an accused, the ordinary procedures for criminal prosecution are
designed to move at a deliberate pace. A requirement of
unreasonable speed would have a deleterious effect both upon the
rights of the accused and upon the ability of society to protect itself.”
United States v. Ewell, 383 U.S. 116, 120 (1966).9 In other words, both




     Not long ago, we recognized these very concerns in the related context of the
     9

Speedy Trial Act:

     Delay unquestionably can be prejudicial to an accused defendant. It can result in
     faded or lost memories, or even the death or other unavailability of witnesses.
     Likewise, in some circumstances, delay can be prejudicial to the public interest
     protected by the Act. On the other hand, failure to consider the harmlessness of
     certain errors under the Speedy Trial Act can result in perverse outcomes,
     including allowing serious crimes to go unpunished, and causing the objective of
     the Act to expedite the administration of criminal justice to be undermined. A
     case tried to a satisfactory conclusion a few days later than the Act specifies,
     without substantial adverse effect on anyone, can require costly retrial a year or
     more later, after appeal, dismissal of the indictment, and reindictment, in a
     manner causing vast expense, inefficiency, unfairness, and unjustifiable delay in
     the administration of criminal justice.

United States v. Zedner, 401 F.3d 36, 47 (2d Cir. 2005), rev’d on other grounds, 547 U.S. 489
(2006). Indeed, the Supreme Court has cautioned that the only possible remedy for a
violation of the Speedy Trial Clause—dismissal of the indictment—is often
“unsatisfactorily severe . . . because it means that a defendant who may be guilty of a
serious crime will go free, without having been tried.” Barker, 407 U.S. at 522. The
“overzealous application of this remedy would infringe ‘the societal interest in trying
people accused of crime, rather than granting them immunization because of legal
error.’” Id. at 522 n.16 (quoting Ewell, 383 U.S. at 121) (ellipses omitted).
15                                                                         No. 11-320-cr




defendants and the public have an interest in a system that is fair
and reliable, which must often come at the expense of haste.10

       Thus, the Supreme Court has recognized for more than a
century that the constitutional right to a speedy trial is not “so
unqualified and absolute” that it must prevail over “the demands of
public justice.” Beavers v. Haubert, 198 U.S. 77, 86 (1905). To the
contrary, “[i]t is consistent with delays[,] depends upon
circumstances . . . [and] does not preclude the rights of public
justice.” Id. at 87; see also Brillon, 556 U.S. at 89-90. Accordingly, the
Sixth Amendment does not establish a requirement for a defendant
to proceed to trial within a certain number of days.11 See Brillon, 556
U.S. at 89-90. Instead, the concept of “speedy” depends in each case
upon both the private and public interests in an efficient, fair, and
effective justice system. See Loud Hawk, 474 U.S. at 312-13.

        For these reasons, the Supreme Court has formulated a four-
factor balancing test for evaluating a defendant’s claim that his or
her speedy trial right has been violated. In particular, we must
consider: “(1) the length of the delay; (2) the reasons for the delay;
(3) whether the defendant asserted his right in the run-up to the
trial; and (4) whether the defendant was prejudiced by the failure to




      It bears noting that delay is frequently a tactic that favors the defendant, not the
     10

government, see, e.g., Brillon, 556 U.S. at 90, 92; Barker, 407 U.S. at 534-36, and defendants
may not always be eager to proceed quickly to trial and, perhaps, sentencing. As Edward
Bennett Williams, one of the premier criminal defense attorneys in the latter half of the
twentieth century, observed about delay from the perspective of a defendant, “[i]t was
just as good as an acquittal, but didn’t last as long.” Carrie Johnson, Showtime For
Cisneros, Legal Times, Sept. 6, 1999.
     11 A defendant’s right to a speedy trial only attaches when he or she “is indicted,
arrested, or otherwise officially accused.” United States v. MacDonald, 456 U.S. 1, 6 (1982);
see also United States v. Marion, 404 U.S. 307, 313 (1971).
16                                                                         No. 11-320-cr




bring the case to trial more quickly.”12 United States v. Cain, 671 F.3d
271, 296 (2d Cir. 2012) (relying on Barker, 407 U.S. at 530).




      The relative importance placed on each of the factors by the Supreme Court has
     12

varied over time. For example, in MacDonald, Chief Justice Burger, writing for the Court,
explained:
     The Sixth Amendment right to a speedy trial is . . . not primarily intended to
     prevent prejudice to the defense caused by passage of time; that interest is
     protected primarily by the Due Process Clause and by statutes of limitations. The
     speedy trial guarantee is designed to minimize the possibility of lengthy
     incarceration prior to trial, to reduce the lesser, but nevertheless substantial,
     impairment of liberty imposed on an accused while released on bail, and to
     shorten the disruption of life caused by arrest and the presence of unresolved
     criminal charges.
456 U.S. at 8. Ten years later, however, Justice Souter, then writing for the Court,
expressed quite a different view. He emphasized that “the possibility that the accused’s
defense will be impaired by dimming memories and loss of exculpatory evidence . . . [is]
the most serious [of the forms of prejudice] because the inability of a defendant
adequately to prepare his case skews the fairness of the entire system.” Doggett v. United
States, 505 U.S. 647, 654 (1992) (internal quotation marks, citations, and brackets omitted);
see also id. at 662 (Thomas, J., dissenting) (describing “two conflicting lines of authority,
the one declaring that limiting the possibility that the defense will be impaired is an
independent and fundamental objective of the Speedy Trial Clause, and the other
declaring that it is not” (internal quotation marks, citations, and brackets omitted)).
    Indeed, in Reed v. Farley, 512 U.S. 339 (1994), the Supreme Court further elevated the
prejudice prong, stating that “[a] showing of prejudice is required to establish a violation
of the Sixth Amendment Speedy Trial Clause.” Id. at 353; but see Barker, 407 U.S. at 533
(“We regard none of the four factors identified above as either a necessary or sufficient
condition to the finding of a deprivation of the right of speedy trial.”). For our part, we
have understood that “[a]lthough a showing of prejudice is not a prerequisite to finding a
Sixth Amendment violation, courts generally have been reluctant to find a speedy trial
violation in the absence of genuine prejudice.” United States v. Cain, 671 F.3d 271, 297 (2d
Cir. 2012) (internal quotation marks and brackets omitted). Because we conclude that
Ghailani was neither prejudiced within the meaning of the Sixth Amendment’s Speedy
Trial Clause, nor otherwise subjected to a speedy trial violation, we need not further
pursue the evolution of the relative importance of the prejudice prong in the four-factor
balancing test.
17                                                                         No. 11-320-cr




      As we recently explained, “[t]he first of the Barker factors, the
length of the delay, is in effect a threshold question: ‘by definition, a
defendant cannot complain that the government has denied him a
speedy trial if it has, in fact, prosecuted his case with customary
promptness.’” Id. (quoting Doggett v. United States, 505 U.S. 647, 652
(1992)) (brackets omitted). That is to say that we will only consider
the other Barker factors when the defendant makes a showing that
“that the interval between accusation and trial has crossed the
threshold dividing ordinary from ‘presumptively prejudicial’
delay.”13 Doggett, 505 U.S. at 651-52 (quoting Barker, 407 U.S. at 530-
31).

       Once the defendant has demonstrated a “presumptively
prejudicial” delay, we must proceed to balance the four Barker
factors, remaining mindful that “they are related factors” with “no
talismanic qualities” that “must be considered together with such
other circumstances as may be relevant.” Barker, 407 U.S. at 533; see
also Brillon, 556 U.S. at 91 (noting that “Barker’s formulation
necessarily compels courts to approach speedy trial cases on an ad
hoc basis” (internal quotation marks omitted)). Because Barker’s
standard requires courts to “engage in a difficult and sensitive
balancing process,” 407 U.S. at 533, we have confirmed that “the
considerations involved in applying the critical balancing test are
confided to the trial court’s discretion,” United States v. Tantalo, 680
F.2d 903, 910 (2d Cir. 1982). We therefore rely on the facts found by

     13As with other issues in this area of the law, the definition of “presumptively
prejudicial” remains less than precise. See United States v. Vassell, 970 F.2d 1162, 1164 (2d
Cir. 1992) (“It comes as no surprise that courts have been unable to define ‘presumptively
prejudicial.’”); cf. Doggett, 505 U.S. at 652 n.1 (noting, without further comment, that
lower courts generally had found delay to cross this threshold “at least as it approaches
one year”). In any case, the circumstances presented by Ghailani’s detention do not
require us to parse this term further, inasmuch as he was held for over five years prior to
trial and the government does not contest that this period was “presumptively
prejudicial.” Gov’t Br. 42 n.*.
18                                                        No. 11-320-cr




the District Court, with the exception of any clearly erroneous
findings. See United States v. Daley, 702 F.3d 96, 99-100 (2d Cir. 2012);
cf. Doggett, 505 U.S. at 652 (affording “considerable deference” to the
trial court’s determination that the government was negligent in
failing to proceed speedily to trial).

       Although we have stated that “[w]e review the district court’s
balancing of [the Barker] factors for abuse of discretion,” Cain, 671
F.3d at 296, a determination whether someone’s constitutional rights
have been violated is rarely viewed as a matter truly left to district
court “discretion.” Rather, as we have had many occasions to note,
“abuse of discretion” is a term of art, and is more properly
understood to refer to occasions when a district court “base[s] its
ruling on an erroneous view of the law or on a clearly erroneous
assessment of the evidence, or render[s] a decision that cannot be
located within the range of permissible decisions.” In re Sims, 534
F.3d 117, 132 (2d Cir. 2008) (internal quotations marks and citation
omitted); see also Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 168–69 &
nn.4–6 (2d Cir. 2001). That range of permissible decisions may vary
considerably depending on the issue. See Joseph T. Sneed, Trial-
Court Discretion: Its Exercise by Trial Courts and Its Review by
Appellate Courts, 13 J. App. Prac. & Process 201, 202, 207 (2012)
(commentary by the late Judge Sneed, a former Dean of the Duke
Law School, on the several possible meanings of the term of art
“abuse of discretion”). Under the standard thus viewed, in
evaluating a defendant’s rights under the Speedy Trial Clause, a
district court is in no better position than a reviewing court to
undertake the required balancing. Indeed, it is improbable that we
would approve opposite decisions as to two identically-placed
defendants on the basis that each decision was within the trial
judge’s discretion. Accordingly, we consider whether the District
Court here erred in balancing the Barker factors.
19                                                                       No. 11-320-cr




                        2. The District Court’s Decision

       In ruling on Ghailani’s constitutional objection to the delay
from the start of his detention in CIA custody to his arraignment in
New York on June 9, 2009, Judge Kaplan carefully evaluated each of
the four Barker factors. First, Judge Kaplan found that the “length of
the delay” protested by Ghailani was nearly five years. 14 Ghailani,
751 F. Supp. 2d at 529.

       Second, Judge Kaplan addressed Ghailani’s invocation of his
right to a speedy trial. He determined that “Barker’s demand factor
does not cut one way or the other in this case [because] Ghailani
cannot be faulted for having failed to invoke his right to a speedy
trial earlier than he did[, n]or can the government be criticized for
ignoring demands for a trial.” Id. at 530.

       Third, Judge Kaplan considered whether the five-year delay
prejudiced Ghailani. The judge found that Ghailani was not
prejudiced by any physical or emotional abuse inflicted during his
detention by the CIA, since any such harm was not related to his
pretrial detention—rather, it was related to the government’s
separate efforts to obtain valuable intelligence. See id. at 531-32.
Further, Judge Kaplan found that Ghailani’s preparation for trial
was not prejudiced by any delay because “he ha[d] not identified
any particular witness who has become unavailable as a result of
this delay.” Id. at 532-33. Finally, he found that the government’s
delay in announcing it was not seeking the death penalty in this case
did not cause anxiety of the “sort [that] would constitute prejudice
for speedy trial purposes.” Id. at 533.

      Ghailani conceded before the District Court, as he does again on appeal, that the
     14

time during which he remained at large after his indictment but before his capture does
not constitute part of the period of “delay” for the purposes of evaluating his claim under
the Speedy Trial Clause. See Ghailani, 751 F. Supp. 2d at 529; Appellant Br. 51.
20                                                                        No. 11-320-cr




        Fourth, Judge Kaplan evaluated the government’s reasons for
delay. In doing so, he divided the period of delay into two phases.
He concluded that the first phase, during which Ghailani was held
by the CIA from July 2004 through September 2006, was entirely
justifiable because “the decision to place Ghailani in the CIA
Program was made in the reasonable belief that he had valuable
information essential to combating Al Qaeda and protecting national
security” and because “the evidence show[ed] that the government
had reason to believe that this valuable intelligence could not have
been obtained except by putting Ghailani into that program and that
it could not successfully have done so and prosecuted him in federal
court at the same time.” Id. at 535.

      The second phase, from September 2006 through June 2009,
during which time Ghailani was held at Guantanamo Bay, was
considerably more complicated. As to that time period, Judge
Kaplan determined that “there is no evidence that the government
ever acted in bad faith to gain a tactical advantage over or to
prejudice Ghailani with respect to his defense of this indictment.” 15


      In Barker, the Supreme Court articulated the following framework for the “reason
     15

for delay” factor:
     Closely related to length of delay is the reason the government assigns to justify
     the delay. Here, too, different weights should be assigned to different reasons. A
     deliberate attempt to delay the trial in order to hamper the defense should be
     weighted heavily against the government. A more neutral reason such as
     negligence or overcrowded courts should be weighted less heavily but
     nevertheless should be considered since the ultimate responsibility for such
     circumstances must rest with the government rather than with the defendant.
     Finally, a valid reason, such as a missing witness, should serve to justify
     appropriate delay.
407 U.S. at 531 (footnote omitted); see also id. at 531 n.32 (“We have indicated on previous
occasions that it is improper for the prosecution intentionally to delay ‘to gain some
tactical advantage over [defendants] or to harass them.’” (quoting Marion, 404 U.S. at 325)
(alteration in original)).
21                                                        No. 11-320-cr




Id. at 534. However, Judge Kaplan also concluded that the
government’s reasons for holding Ghailani at Guantanamo Bay
without trial on his federal court indictment, while not in bad faith,
nevertheless weighed against the government. In particular, Judge
Kaplan observed that “while the executive branch was entitled to
decide where it would hold Ghailani to prevent him from resuming
hostilities against the United States, the government is responsible
for the delay caused by that decision.” Id. at 537. Similarly, the delay
could not be justified by the government’s initial decision to proceed
before the CSRT and then by military commission. See id. at 537-39.
While these decisions may not have been made in bad faith, neutral
decisions that delay a trial must nonetheless be counted against the
government. See id. at 537 (relying on Barker, 407 U.S. at 531); see also
note 15, ante.

       Having addressed each Barker factor individually, Judge
Kaplan proceeded to weigh them, and concluded that,
“[c]onsidering all of the circumstances, particularly the lack of
significant prejudice of the sort that the Speedy Trial Clause was
intended to prevent, the delay in this case did not materially infringe
upon any interest protected by the right to a speedy trial.” Ghailani,
751 F. Supp. 2d at 541.

                              3. Analysis

      Ghailani now asserts that the District Court made two
principal errors in evaluating his speedy trial claim. First, he
contends that national security interests and preparation for his
then-intended trial before a military commission cannot justify the
delay incurred. Second, he argues that the District Court was
incorrect in finding that he did not suffer prejudice as a result of the
delay. Ultimately, of course, he claims that the Barker factors
22                                                                        No. 11-320-cr




demonstrate a violation of his rights under the Speedy Trial Clause,
and, thus, require us to reverse his conviction.

       Ghailani’s claim is based on the delay from the time he first
came into the exclusive custody of the United States following his
July 25, 2004 capture until his June 9, 2009 arraignment in the
District Court.16 The period he protests covers approximately five
years and can be viewed as divided into two segments based on the
changing concerns that caused the delay. The delay from the
beginning of his custody until his transfer to Guantanamo was
caused by national security concerns. The delay from his transfer
until his arraignment was caused by preparations for trial before a
military commission. We agree with Judge Kaplan that this period
was long enough to trigger the Barker analysis. Accordingly, we
discuss each Barker factor in turn, paying particular attention to the
errors claimed by Ghailani in the District Court’s analysis.

                               i. Reasons for Delay

                                a. National Security

       As for his claim that the interests of national security cannot
justify delaying his trial, Ghailani proposes that “[u]pon seizing
[him], the government had a choice: It could either choose to accord
him his Constitutional right to a speedy trial on the existing
indictment, or it could choose to strip him of an array of
Constitutional rights and hold him in a Black Site for questioning.
Emphatically, however, the government could not do both.”
Appellant Br. 56. In other words, according to Ghailani’s brief and
presentation at oral argument, his detention for national security


      Ghailani does not argue that any further delay from his arraignment in the District
     16

Court until the trial began on October 12, 2010, violated his right to a speedy trial under
the Sixth Amendment.
23                                                        No. 11-320-cr




purposes may well have been proper, but it precluded the
government from ever bringing him to justice in our civilian courts
for his crimes under United States law because, in Ghailani’s view, it
constituted an automatic violation of his rights guaranteed by the
Speedy Trial Clause. Id. Ghailani offers no case law or other
authority that supports this view, and for good reason—the Speedy
Trial Clause of the Sixth Amendment does not create any such rule.

       To the extent that Ghailani suggests generally that the
government may not choose, for policy reasons, to delay his trial, his
claim is rebutted by an unbroken line of cases going back well over a
century, each of which has permitted the government purposely to
delay trials for significant periods of time, so long as, on balance, the
public and private interests rendered the delay reasonable. For
example, the Supreme Court has approved delays for the
government to prosecute the defendant in another jurisdiction first,
see Beavers, 198 U.S. at 84-87, for the government to pursue
interlocutory appeals, see Loud Hawk, 474 U.S. at 312-13, and for the
government to prosecute a separate defendant in order to secure his
testimony at trial, see Barker, 407 U.S. at 516-18. Following these
precedents, we have, upon balancing the Barker factors, allowed
delays for the government to keep co-defendants from fleeing, avoid
risk to informants, and protect the integrity of an investigation, see
United States v. Blanco, 861 F.2d 773, 779 (2d Cir. 1988), for the
government to persuade a witness to testify, see United States v.
Vassell, 970 F.2d 1162, 1165 (2d Cir. 1992), and for the government to
decide whether to pursue the death penalty, see United States v. Abad,
514 F.3d 271, 274 (2d Cir. 2008).

      In each of these cases, the government made a deliberate
choice to sacrifice proceeding to trial more quickly in favor of what
it deemed to be in the public interest. Indeed, although a delay
intended unfairly to interfere with the defense or purely to harass
24                                                        No. 11-320-cr




the defendant would count quite heavily in favor of a violation of
the Speedy Trial Clause, see Barker, 407 U.S. at 531, the Speedy Trial
Clause prohibits only trial delays that, on balance, are unreasonable
in light of the public and private interests at stake in the particular
case. See, e.g., Loud Hawk, 474 U.S. at 312-17 (employing the Barker
factors to weigh the public and private interests in the delay
attendant to government taking interlocutory appeals); Ewell, 383
U.S. at 120 (“A requirement of unreasonable speed would have a
deleterious effect both upon the rights of the accused and upon the
ability of society to protect itself.”). In other words, a delay does not
render a trial not “speedy” under the Constitution merely because
the government intended to cause the delay.

        To the extent that Ghailani nonetheless contends specifically
that national security cannot justify pretrial delay, his argument is
no more convincing. As we have now made abundantly clear, the
definition of a “speedy” trial under the Sixth Amendment depends
in each case in part upon the public interest that may weigh in favor
of delay. See, e.g., Loud Hawk, 474 U.S. at 313; Barker, 407 U.S. at 530-
31. And the Supreme Court has stated in no uncertain terms that
“[i]t is ‘obvious and unarguable’ that no governmental interest is
more compelling than the security of the Nation.” Haig v. Agee, 453
U.S. 280, 307 (1981) (quoting Aptheker v. Secretary of State, 378 U.S.
500, 509 (1964)). Indeed, we have previously invoked “our
traditional deference to the judgment of the executive department in
matters of foreign policy” in denying a claim that the government’s
failure to extradite a defendant violated his right to a speedy trial.
United States v. Diacolios, 837 F.2d 79, 83 (2d Cir. 1988) (internal
quotation marks omitted). We see little reason not to accord a
similar deference—at least when the government has made a
showing that, on balance, the other Barker factors do not outweigh
the reason for delay—in the context of national security.
25                                                       No. 11-320-cr




       It is true that national security is a somewhat unusual cause
for trial delay in that it is not related to the trial itself. But we
observe nothing in the text or history of the Speedy Trial Clause that
requires the government to choose between national security and an
orderly and fair justice system. To the contrary, the Speedy Trial
Clause preserves both the interests of defendants and the societal
interest in the integrity of the justice system by balancing those
interests to determine whether the requirements of the Clause have
been violated. We observe no basis for, and reject in full, Ghailani’s
argument that, once having detained a defendant as a national
security intelligence asset, the government can no longer bring the
defendant to trial. Ghailani’s suggestion that the government must
detain defendants who pose a threat to national security indefinitely
rather than bring them to trial for their crimes in the manner
consistent with our traditional notions of justice would hardly
advance the interests of defendants or the values underpinning the
Speedy Trial Clause.

       We reject also Ghailani’s fallback position that the delay
occasioned by national security concerns was so excessive as to bar
the government from thereafter proceeding to trial. There is no
simple bright-line answer to the question of how much delay by
reason of national security concerns is consistent with the
government’s right to proceed thereafter to trial. In previous cases,
the Supreme Court has held that delays of upwards of five and
seven years did not violate the Speedy Trial Clause in the
circumstances presented. See Loud Hawk, 474 U.S. at 315-17 (more
than seven years); Barker, 407 U.S. at 533-34 (“well over five years”).
We have previously found circumstances which permitted delays of
five, six, and seven years. See Rayborn v. Scully, 858 F.2d 84, 89 (2d
Cir. 1988) (over seven years); United States v. Lane, 561 F.2d 1075,
1078 (2d Cir. 1977) (58 months); United States v. Saglimbene, 471 F.2d
16, 17 (2d Cir. 1972) (six years).
26                                                     No. 11-320-cr




       While the delay here was undoubtedly considerable, the
District Court correctly determined that other factors strongly favor
the government. As the District Court found, “the decision to place
Ghailani in the CIA Program was made in the reasonable belief that
he had valuable information essential to combating Al Qaeda and
protecting national security” and “the evidence show[ed] that the
government had reason to believe that this valuable intelligence
could not have been obtained except by putting Ghailani into that
program and that it could not successfully have done so and
prosecuted him in federal court at the same time.” Ghailani, 751 F.
Supp. 2d at 535. In this context—and we emphasize that this
question must be considered in the specific factual circumstances of
each case—we do not think that the approximately two-year delay
caused by national security concerns was so excessive as to bar
Ghailani’s prosecution.

       Ghailani further contends that “once the specter of a national
security threat has been raised, there [will be] no necessity for a
further Barker analysis.” Appellant Br. 56. We are not concerned that
permitting a delay based on the weighty national security interests
present in this case will somehow undo the Speedy Trial Clause for
all future cases. Judge Kaplan’s opinion in this case—which
carefully and thoroughly weighed the evidence presented by the
government before concluding that the delay did not amount to a
speedy trial violation—did not announce any such general rule, nor
does this Opinion. The District Court did not forgo the Barker
analysis in deference to national security concerns. To the contrary,
it addressed each factor and determined that, on balance, the speed
with which the government brought Ghailani to trial was
constitutionally sufficient. The District Court’s analysis (and this
Opinion) confirms that, under the Barker analysis, the weight of a
national security justification for delay—just like any other
27                                                      No. 11-320-cr




justification—will depend on the facts and circumstances of each
case.

       In the final analysis, the Sixth Amendment right to a speedy
trial is just that: a right to proceed to trial in a manner that is
sufficiently expeditious under the circumstances presented in the
particular case. In this case, proceedings were permissibly and
reasonably delayed by weighty considerations relating to national
security. Accordingly, the delay of Ghailani’s trial while he was in
CIA custody was justified under the Barker framework, see 407 U.S.
at 531, and does not weigh against the government in the balancing
of the factors.

      b. Preparations for Trial before a Military Commission

      In September 2006 Ghailani was placed in Department of
Defense custody and transferred to Guantanamo Bay to be detained
as an alien enemy combatant. On March 17, 2007, a CSRT hearing
was held and Ghailani’s classification as an alien enemy combatant
sustained. He was thereafter held at Guantanamo Bay while military
authorities prepared to prosecute him before a military commission.
Upon President Obama’s inauguration in January 2009, the military
commission was suspended and the government altered course,
preparing instead to try Ghailani in civilian court. Soon thereafter,
on June 9, 2009, he was arraigned in the District Court.

       Once again, while recognizing that the duration of the delay at
Guantanamo Bay was substantial, we conclude that the pertinent
factors sufficiently favor the government. We reject Ghailani’s
contention that the delay from September 2006 until June 9, 2009
requires dismissal of the charges against him.

    The job of preparing to prosecute Ghailani before the military
commission was unquestionably difficult. Although much of the
28                                                        No. 11-320-cr




difficulty was a product of the government’s own choices, the trial
was proceeding under a new, untested legal regime and all events
relevant to the charges occurred outside the United States and
involved foreign actors and witnesses. Some significant period of
delay was therefore reasonable. Ghailani contends this is rebutted
by the government’s acknowledgment that all of its preparation for
the criminal trial was concluded prior to Ghailani coming into
exclusive United States custody. This misconstrues the government’s
concession. The government indeed acknowledged that “every
percipient witness called at Ghailani’s [district court] trial was
discovered and interviewed by federal law-enforcement officials
before the defendant was captured in 2004 [and that] every piece of
evidence offered at the . . . trial . . . was obtained before the
defendant was captured.” Appellee Br. 93. But the fact that the
witnesses eventually called had already been interviewed, and the
physical evidence eventually used had already been obtained, does
not mean that all investigation had been accomplished, much less
that trial preparation was complete. After all, preparation for trial in
any case as complex as this case remains a huge undertaking.

       We also agree with Judge Kaplan’s determination that “there
is no evidence that the government ever acted in bad faith to gain a
tactical advantage over or to prejudice Ghailani with respect to his
defense of th[e] indictment.” Ghailani, 751 F. Supp at 534. Indeed, the
record demonstrates that the government was not acting with the
intent to cause prejudicial delay but, until President Obama took
office in January 2009 and suspended the military commissions, was
acting under the good faith belief that Ghailani would be tried by
military commission. Undoubtedly, however, the delay caused by
the government’s original strategy to try Ghailani before a military
commission was long, and largely a product of the government’s
own choices. We agree, therefore, with the District Court’s
conclusion that the reasons for this delay weigh against the
29                                                                                   No. 11-320-cr




government. However, as explained more fully below, on balance,
consideration of all the pertinent factors favors the government and
requires denial of Ghailani’s claim that he is entitled to have the
indictment dismissed.17

                                ii. Invocation of the Right

      We note that throughout the period of delay at issue, Ghailani
never demanded a speedy trial. His March 2009 petition for habeas
corpus did not seek a speedy trial, but rather, demanded his release
and dismissal of the indictment with prejudice. Generally, failure to
demand a speedy trial makes it difficult for a defendant to prove
that he was denied a speedy trial. See Barker, 407 U.S. at 532. Here,
the District Court addressed Ghailani’s invocation of his right to a
speedy trial and determined that “Barker’s demand factor does not
cut one way or the other in this case [because] Ghailani cannot be
faulted for having failed to invoke his right to a speedy trial earlier
than he did[, n]or can the government be criticized for ignoring
demands for a trial.” Id. at 530. We agree with Judge Kaplan’s
conclusion that this factor does not affect the balancing test he was
required to apply.

                                          iii. Prejudice

      Ghailani next argues that the District Court erred in its
consideration of whether he was prejudiced by the delay in his case.
Most significantly, Ghailani contends that the District Court should
have considered the physical and psychological harm he endured
while in CIA custody as prejudice supporting his speedy trial claim.
      17 The government contends that the period Ghailani was detained at Guantanamo Bay was

justified on national security grounds as well, in part based on its interest in detaining him as an enemy
combatant and holding him accountable for violations of the laws of war. We agree with Judge
Kaplan’s conclusion that “while the executive branch was entitled to decide where it would hold
Ghailani to prevent him from resuming hostilities against the United States, the government is
responsible for the delay caused by that decision.” 751 F. Supp. 2d at 537.
30                                                                                 No. 11-320-cr




The District Court concluded, however, that whatever treatment
Ghailani endured at the hands of the CIA was not caused by the
delay in his trial and therefore not relevant to the Barker analysis. See
Ghailani, 751 F. Supp. 2d at 531-32.

        We agree with Judge Kaplan. The Supreme Court has
consistently emphasized three interests of a defendant that may be
prejudiced by trial delay: “‘oppressive pretrial incarceration,’
‘anxiety and concern of the accused,’ and ‘the possibility that the
accused’s defense will be impaired’ by dimming memories and loss
of exculpatory evidence.” Doggett, 505 U.S. at 654 (quoting Barker,
407 U.S. at 532) (brackets omitted). Ghailani complains of oppressive
pretrial incarceration, but notably, his detention by the CIA was not
“pretrial,” as it was not incarceration for the purpose of awaiting
trial. In other words, Ghailani would have been detained by the CIA
for the purpose of obtaining information whether or not he was
awaiting trial, and the conditions of his detention were a product of
the CIA’s investigation, not incarceration as a prelude to trial.18

      We have denied a speedy trial claim in similar circumstances,
explaining that the defendant could not “claim prejudice traceable to
any oppressive pretrial incarceration, because he would have been
serving his state sentence in any event.” United States v. Lainez-Leiva,
129 F.3d 89, 92 (2d Cir. 1997). Other circuits have held much the
same. See, e.g., United States v. Knight, 562 F.3d 1314, 1324 (11th Cir.
2009) (“Although [the defendant] complains about the conditions of
his detention in a maximum-security facility, he would have been

     18 We also note that the impact on this trial of any physical or psychological harm that Ghailani

suffered while in CIA custody has already been addressed in other ways. Ghailani previously
attempted unsuccessfully to challenge the entire prosecution under the Due Process Clause in light of
the alleged “outrageous government conduct” during his CIA interrogation. See United States v.
Ghailani, 751 F. Supp. 2d 502 (S.D.N.Y. 2010). He also underwent a psychiatric evaluation, at Judge
Kaplan’s order, to ensure that any physical or psychological harm Ghailani suffered did not render
him unfit to stand trial or unable to assist in his defense. See Ghailani, 751 F. Supp. 2d at 532.
31                                                        No. 11-320-cr




otherwise serving a state sentence of imprisonment and was housed
in the maximum-security facility because of his earlier escape.”);
United States v. Watford, 468 F.3d 891, 907 (6th Cir. 2006); United
States v. Sprouts, 282 F.3d 1037, 1043 (8th Cir. 2002); United States v.
Grimmond, 137 F.3d 823, 830 (4th Cir. 1998). In sum, the Speedy Trial
Clause protects defendants against prejudice caused by delays in
their trials, not against the harms of interrogation of enemy
combatants.

       Finally, Ghailani contends that the District Court incorrectly
determined that his defense was not prejudiced by the pretrial
delay. Notably, Ghailani fails to make any argument addressing the
prejudice at the core of the Speedy Trial right—that the delay of the
trial itself (as opposed to other government conduct occurring
during the delay) caused prejudice, such as through the fading of
memories or unavailability of witnesses. Ghailani makes other
arguments, however, including a number related to the idea that the
government gained an informational advantage from Ghailani’s
interrogation, that he was denied a fair and impartial jury due to
pretrial publicity, that he was denied the opportunity to gain the
benefit of a cooperation agreement, and that federal agents
interfered with his military lawyer’s efforts to contact witnesses.

       These claims of prejudice all fail, however. Several were not
raised below and are thus not properly before us on appeal. Many
are cursory, completely unsupported, or were not caused by the
delay and were properly remedied in other ways. As Ghailani has
not demonstrated any substantial prejudice resulting from the delay
in his trial, we find that this factor weighs in the government’s favor.
Although Ghailani points to several theoretical effects the delay
might have had on his preparation for trial, he has identified
nothing that would lead us to conclude that the District Court erred.
32                                                        No. 11-320-cr




                             *      *     *

       For the foregoing reasons, Ghailani has failed to demonstrate
that the District Court’s denial of his motion to dismiss the
indictment for violation of the Speedy Trial Clause was based on
any error of law or clearly erroneous factual finding. Further, we
agree with the District Court’s conclusion that “[c]onsidering all of
the circumstances, particularly the lack of significant prejudice of the
sort that the Speedy Trial Clause was intended to prevent, the delay
in this case did not materially infringe upon any interest protected
by the right to a speedy trial.” Ghailani, 751 F. Supp. 2d at 541.
Therefore, based upon a balancing of the factors set forth by the
Supreme Court in Barker, the District Court correctly concluded that,
in the circumstances presented here, Ghailani’s trial did not violate
the Speedy Trial Clause of the Sixth Amendment.

                   B. Conscious Avoidance Charge

       Ghailani next challenges both the District Court’s decision to
issue a “conscious avoidance” charge to the jury and the specific
formulation of that charge. “As a general matter, we review a
properly preserved claim of error regarding jury instructions de
novo, reversing only where, viewing the charge as a whole, there
was a prejudicial error.” United States v. Coplan, 703 F.3d 46, 87 (2d
Cir. 2012) (internal quotation marks omitted). However, when a
defendant, as here, objects only generally to the issuance of a jury
instruction, and not to the specific language used by the District
Court, the objection to the formulation of the charge is not
preserved. United States v. Skelly, 442 F.3d 94, 99 (2d Cir. 2006). In
such cases, we review the challenge to the language of the jury
charge for plain error, see United States v. Nouri, 711 F.3d 129, 138 (2d
Cir. 2013), which occurs when “(1) there is an error; (2) the error is
clear or obvious, rather than subject to reasonable dispute; (3) the
33                                                        No. 11-320-cr




error affected the appellant’s substantial rights, which in the
ordinary case means it affected the outcome of the district court
proceedings; and (4) the error seriously affects the fairness, integrity
or public reputation of judicial proceedings,” United States v. Marcus,
560 U.S. 258, 130 S. Ct. 2159, 2164 (2010) (internal quotation marks
and brackets omitted). Put simply, “to be plain, an error of the
district court must be obviously wrong in light of existing law.”
United States v. Tarbell, 728 F.3d 122, 126 (2d Cir. 2013) (brackets
omitted).

       A “conscious avoidance” charge allows “a jury to convict a
defendant for deliberately closing his eyes to what would otherwise
have been obvious to him.” United States v. Goffer, 721 F.3d 113, 126
(2d Cir. 2013) (internal quotation marks and brackets omitted). In
other words, “[a] conscious avoidance instruction permits a jury to
find that a defendant had culpable knowledge of a fact when the
evidence shows that the defendant intentionally avoided confirming
the fact.” Coplan, 703 F.3d at 89 (internal quotation marks omitted).
As we recently reaffirmed, a conscious avoidance instruction may be
given only if “the appropriate factual predicate for the charge exists,
i.e. the evidence is such that a rational juror may reach the
conclusion beyond a reasonable doubt that the defendant was aware
of a high probability of the fact in dispute and consciously avoided
confirming that fact.” Goffer, 721 F.3d at 127 (internal quotation
marks omitted).

       Ghailani argues that there was an insufficient factual
predicate for the charge. In his view, the “evidence could not
support an inference that Mr. Ghailani should have known that his
associates were planning to (1) bomb American facilities anywhere
in the world, including the American embassies in Nairobi and Dar
es Salaam; (2) attack employees in the American Government
stationed at those facilities; and (3) attack military installations and
34                                                                      No. 11-320-cr




members of the American military stationed at such military
installations in Saudi Arabia, Yemen, Somalia and elsewhere with
bombs, but purposely decided to ignore[ ] the signs.” Appellant Br.
103-04.

       This claim is without merit. As Judge Kaplan explained, there
was extensive evidence introduced at trial from which a rational
juror could conclude that Ghailani was aware of a high probability
that he was involved in a plot to detonate explosives, including that
“Ghailani and his associates bought a truck that he could not drive
and gas cylinders for which neither he nor they had any known use
save as bomb components” and that Ghailani “possessed a large
quantity of detonators or blasting caps of the sort used in making
the truck bombs.” United States v. Ghailani, 761 F. Supp. 2d 167, 197
(S.D.N.Y. 2011).19 There was also more than sufficient evidence that
Ghailani was aware of a high probability that the plot involved
bombing properties of the United States. As Judge Kaplan
explained, “there was ample evidence that Al Qaeda effectively had
declared war on the United States and Americans generally, civilian
as well as military. It regarded U.S. embassies as attractive targets.
Ghailani was well acquainted and associated closely with Al Qaeda
members and operatives whom the jury reasonably could have
found to have known of these objectives and shared them with
Ghailani.” Id. Based on our independent review of the record, we
agree that there was a proper factual predicate for the issuance of a
conscious avoidance charge.




     19Indeed, after the jury had rendered its verdict, Ghailani’s trial counsel conceded
that “it is more than reasonable to believe that at most what Ghailani is assuming is that
there was a conspiracy to bomb something.” App’x 1568.
35                                                         No. 11-320-cr




       We similarly find no support for Ghailani’s claim that the
District Court’s charge was improperly formulated. Ghailani focuses
on the District Court’s instruction that

      if you find that the defendant was aware of a high
      probability that a fact was so, and that the defendant
      acted with deliberate disregard of the facts, you may
      find that the defendant acted knowingly. However, if
      you find that the defendant actually believed that the
      fact was not so, then he may not have acted knowingly
      with respect to whatever charge you are considering.

Trial Tr. 2462. According to Ghailani, this instruction lacks the
“‘balancing’ language necessary to instruct the jury that if they find
that the defendant actually believed that his conduct was lawful,
they must acquit.” Appellant Br. 107 (relying on United States v.
Schultz, 333 F.3d 393, 413-14 (2d Cir. 2003)). Ghailani’s contention
seems to be that, notwithstanding that Judge Kaplan explained that
“if you find that the defendant actually believed that the fact was
not so, then he may not have acted knowingly,” Trial Tr. 2462, the
instruction was improper because it did not explicitly state that in
that event, acquittal would be appropriate. Appellant Br. 107.

      It is true that in Schultz we indicated that a “district judge
should instruct the jury that knowledge of the existence of a
particular fact is established (1) if a person is aware of a high
probability of its existence, (2) unless he actually believes that it does
not exist.” 333 F.3d at 413 (internal quotation marks omitted).
However, we also recalled that “‘[w]e cannot place the talismanic
weight urged by the defendant on the exact wording of a controlling
opinion and do not believe the district court needed to echo the
opinion paragraph by paragraph to convey adequately its import to
the jury.” Id. at 414 (quoting United States v. Schatzle, 901 F.2d 252,
36                                                                      No. 11-320-cr




255 (2d Cir. 1990)) (brackets omitted). Indeed, a district court “enjoys
broad discretion in crafting its instructions, which is only
circumscribed by the requirement that the charge be fair to both
sides.” Coplan, 703 F.3d at 87 (internal quotation marks and brackets
omitted).

       More to the point, we do not discern how the District Court’s
language failed to convey the required concepts to the jury. In fact,
we recently approved—albeit without objection from the
defendant—a similar instruction on conscious avoidance. See United
States v. Cuti, 720 F.3d 453, 462-63 (2d Cir. 2013). As already
discussed, Ghailani failed to preserve his objection to the language
used by District Court, see App’x 1071-82, requiring us to review his
claim on appeal for plain error. We observe no error, let alone plain
error, in the District Court’s conscious avoidance charge.20

                                   C. Sentencing

      Ghailani challenges his sentence of life imprisonment as both
procedurally and substantively unreasonable. We generally review
sentences for reasonableness, which “requires an examination of the
length of the sentence (substantive reasonableness) as well as the
procedure employed in arriving at the sentence (procedural
reasonableness).” United States v. Johnson, 567 F.3d 40, 51 (2d Cir.
2009). We recently described procedural and substantive
unreasonableness as follows:


     20To the extent that Ghailani argues, in a supplemental letter submitted pursuant to
Federal Rule of Appellate Procedure 28(j), that the Supreme Court’s holding in Global-
Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), rendered the District Court’s
conscious avoidance charge improper for failure to require that the jury find that the
defendant took deliberate actions to avoid learning of the objects of the conspiracy, we
specifically rejected that claim in United States v. Goffer, 721 F.3d 113, 127-28 (2d Cir.
2013).
37                                                                        No. 11-320-cr




          A district court errs procedurally when it fails to calculate
          (or improperly calculates) the Sentencing Guidelines
          range, treats the Sentencing Guidelines as mandatory,
          fails to consider the § 3553(a) factors, selects a sentence
          based on clearly erroneous facts, or fails adequately to
          explain the chosen sentence. A district court errs
          substantively if its sentence cannot be located within the
          range of permissible decisions. In reviewing the
          substantive reasonableness of a sentence, we take into
          account the totality of the circumstances, giving due
          deference to the sentencing judge’s exercise of
          discretion, and bearing in mind the institutional
          advantages of district courts.

United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013) (internal
quotation marks and citations omitted; emphases supplied). In
simpler terms, we review sentences for “abuse of discretion.” Id.; see
also In re Sims, 534 F.3d at 132 (defining the term of art “abuse of
discretion,” as discussed in Part A.1, ante).

       First, Ghailani argues that the District Court erred
procedurally by failing to hold a so-called Fatico hearing21 before
considering certain out-of-court statements. We identify no error,
much less an abuse of discretion, in the District Court’s decision not
to hold a Fatico hearing. We recently noted that “it is well
established that a district court need not hold an evidentiary hearing
to resolve sentencing disputes, as long as the defendant is afforded
some opportunity to rebut the [g]overnment’s allegations.” United
States v. Broxmeyer, 699 F.3d 265, 280 (2d Cir. 2012) (internal

      “A ‘Fatico’ hearing is a sentencing hearing at which the prosecution and the defense
     21

may introduce evidence relating to the appropriate sentence.” United States v. Lohan, 945
F.2d 1214, 1216 (2d Cir. 1991) (referring to United States v. Fatico, 603 F.2d 1053 (2d Cir.
1979)).
38                                                        No. 11-320-cr




quotation marks omitted). Indeed, a Fatico hearing was particularly
unnecessary in Ghailani’s case because the District Court repeatedly
and explicitly stated that the hearsay complained of would “not
affect the sentence.” App’x 1646; see also id. at 1647 (“I reiterate that
my findings on these points do not affect the sentence.”). In short,
there was no error in the District Court’s decision not to hold a Fatico
hearing.

       Second, Ghailani contends that the District Court “failed to
address [his] specific request to craft a sentence which would
properly reflect the vast distinction between his conviction on one
count of this indictment, and the previous convictions of his co-
defendants.” Appellant Br. 116. Under 18 U.S.C. § 3553(a)(6), among
the factors that a judge must consider at sentencing is “the need to
avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct.”
However, we have repeatedly made clear that “section 3553(a)(6)
requires a district court to consider nationwide sentence disparities,
but does not require a district court to consider disparities between
co-defendants.” United States v. Frias, 521 F.3d 229, 236 (2d Cir. 2008).
As the record discloses, “the District Court properly calculated the
Guidelines range, treated the range as appropriately advisory,
considered the Section 3553(a) factors, selected a sentence based on
facts that were not clearly erroneous, and adequately explained its
chosen sentence, which was in the Guidelines range.” United States v.
Alvarado, 720 F.3d 153, 159 (2d Cir. 2013). No additional comparisons
between Ghailani’s sentence and those of his co-conspirators were
necessary.

      Third, Ghailani claims that his sentence was substantively
unreasonable. We disagree. In the circumstances of this case, there
was nothing unreasonable about sentencing this defendant to life in
prison based on a conviction for conspiring to destroy United States
39                                                      No. 11-320-cr




buildings and property, and directly or proximately causing the
deaths of 224 people. We are particularly unconvinced by Ghailani’s
claim that “there was something fundamentally unfair and unjust in
imposing upon [him] the same sentence meted out to the prior co-
defendants tried in 2001, all of whom were convicted of all of the
more serious counts which carried mandatory sentences.” Appellant
Br. 141. Ghailani offers no authority, nor do we find any, for the
suggestion that a sentence should in some way correlate to the
number of counts of conviction, as opposed to the nature of the
defendant’s criminal conduct. Nor do we observe any support in
law or logic for the notion that, no matter how heinous a defendant’s
crime, a life sentence is inappropriate whenever a co-defendant has
killed one more person.

      In the words of the experienced District Judge:

      The offense was horrific. It far outweighs any and all
      other considerations that have been advanced on behalf
      of the defendant. A sentence must be imposed that in
      addition to other things makes it crystal clear that other
      who engage or contemplate engaging in deadly acts of
      terrorism risk enormously serious consequences.

App’x 1713. A sentence of life imprisonment for Ghailani was far
from unreasonable.

                          CONCLUSION

      To summarize:

      (1)   In the circumstances presented here, the District Court
            did not err (or “abuse its discretion,” as that term is
            properly understood) in determining that the nearly
            five-year delay between the defendant’s capture and his
40                                                     No. 11-320-cr




           arraignment, during which time he was interrogated as
           an enemy combatant and detained at Guantanamo Bay,
           did not constitute a violation of the Speedy Trial Clause
           of the Sixth Amendment.

     (2)   The District Court did not err either in charging the jury
           with a conscious avoidance instruction or in
           formulating that instruction.

     (3)   The defendant’s sentence of life imprisonment, based
           on a conviction for conspiring to destroy United States
           buildings and property and directly or proximately
           causing the deaths of 224 people, was neither
           procedurally nor substantively unreasonable.

      In sum, Judge Kaplan presided over this challenging and
complex case with exemplary care and fairness, and we detect no
error in the various difficult matters decided throughout the
proceedings.

     Accordingly,   the   judgment    of   the   District   Court   is
AFFIRMED.
