                                REDACTED/ CLEARED FOR PUBLIC RELEASE




                                  UNITED STATES DISTRfCT COURT
                                  FOR THE JJJSTHICT OF COLUMBIA

VNJTED STATES OF AMERICA.

                          V



AHMED SALIM FARAJ ABU                                    Case No. 14-cr-00141 (CRC)
KIIATALLAfl,

        also known     as "'Ahmed Ahu Klwtallah:·
        also known     as '·Ahmed Mllbtallah"
        also knovm     as --Ahmed Bukatallah'.
        also known     as ''Sheik."

                    Defendant.


                                M.EMORANIJUM OPINION AND ORDER

       The Government has moved to atlmit into evidence at trial telephone reeortls that it

alleges are assm:iatcd with a phone number used by the Defendant Ahmed Abu Khatallah. It

contends that these telephone records arc admissihle as business records under Federal Rule of

Evidence 803(6). Abu Khatallah has challenged the admission of the records. and the Court held

a hearing on the_ir admissibility on September 14. 2017. For the reasons that follow. the Coun

will grant the Government's motion antl admit the telephone records as husincss records. r

  I.    Factual Background




        1
            Due to time constraints. thi:s Ordcr has heen fik:d as dassified wilh a Classified
Information Security Officer (''CISO"}. The Court has requested the equity holder conduct a
classifir.:ation revinv of this order within 7 days and intends lo i·ekase a reductt:d. publie version
of the Order in a timely fashion.




                              REDACTED/ CLEARED FOR PUBLIC RELEASE
      REDACTED / CLEARED FOR PUBLIC RELEASE




                       2


REDACTED/ CLEARED FOR PUBLIC RELEASE
  REDACTED I CLEARED FOR PUBLIC RELEASE




                  3


REDACTED/ CLEARED FOR PUBLIC RELEASE
    PED ACTED/ CLEARED FOR PUBLIC RELEASE




                   4



REDACTED/ CLEARED FOR PUBLIC RELEASE
                            REDACTED I CLEARED FOR PUBLIC RELEASE

                                                           ..   ~




       ·rhe Federal Bureau of Investigation ohtaincd a copy of these telephone records in

Octnher2012. Hr"g lr. 70:13- 15. 91:14 18 (Sept. 14. 2017). In January 2017. Agent Justin

()"Donnell or the FBI contacted Mohamed Ben Ayad. thc CEO or Libya nu. seeking to

authenticate the records. Id. 7 l: 16-20. 72:5. Ayad was also one of the individucils who helped

found Libyana in 2004.    Jii 73:2 I   23. Prior to meeting with him. Agent o·Donncll and other

agents confirmed Ayad·s identity us the I .ihyana CEO through open sources and publicly

available information. Id, 72: l 0-17. 98: 17-22. Agent ff Donnell and FBI Agent Mike Clarke

met with Ayad outside the United States on January 21. 20 I 7. ld..-. 72:2---5. At the 111<-:eting.

Agent O'Donnell and Agent Clarke introduced themselves as FBI agents investigating the

Septcmhcr 2012 attack on the U.S. Mission and Annex in Benghazi. Id~ 72:20-24. 73:14-16.

Ayad agreed to assist the two agents in their investigation with respect to the telephone records.

lt 73:18.
        During the meeting, Agent O'Donnell and Agent Clarke showed Ayad a hard copy of the

telephone records . .1£L. 74:6- I 0. Ayad !old the agents that Libyana maintains call data records as

a rnal!er of gem:ral practice for reasons such as accountahi \ity and nilling anc.J thal he was

Cami liar with Libyana's businc~s records pi-act ices. j_Q,_ 73:24 -74:3. 85: 17-86: I, l 02:4- 5. I-le

then reviewed the records that the agents brought with them for Sl·veral minutes. lg_, 74: 12--13.

After his review. he told the agents that the records wen: call data rcctirds from L.ihyana,

explaining thatthe f"onrnit of the records and the .. profile page'- that listed the information ahout

the subscrihcr w<.:rc unique to Ubyana. hl_,_ 74:17- 19. /\yad cxplairn:d that he had helped design

the format for the profile page with thc subserihcr information and rcc(igni1.~d it.      &   76: l 3. In


                                                     5
                                       Hl:DACTED I CLEARED FOR PUBLIC RELEASE




addition. /\yad told tho..: agents that two particular tderhonl.' number rrefixcs ---092 and 094--

wcre used solely for numbers serviced by Libyana and lhc number here had a 092 prefix. 14,_

75:2-· 17. The agents lhtn asked Ayad to sign a certification form attesting to the authenticity of

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

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

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

          /.'o/lov.--ing tl,c meeting, J\yad emailed Agtn1 O'Donndl additinnaJ phone records for the

same 1elcphonc-numbcr.1his time covering February 21. 2014 through April 28. 2014. lg, 80:3--
              1
9. 82: 1--1 l. ' Agent O'Donnell replied to Ayad via email. thanking him for the records but

clarifying that the government was interested in telephone records for July to December 2012.

1101   fehruary to April 2014.   1sL 82:16-23.     Ayad responded that he could not access those

records at this rime because the electronic records from 2012 had been corrupted. though

technicians were working on 1·ecovering the data. ld_._ 83: 1-J. l 05: 1-2. I 07:4-6. I 26:7-19.

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

still unable to access the relevant data from 2012.         !.!L l 07: 7 10. l 12:3--10.
          On .July 12. 2017. Agent O'Donnell sent c.1n electronic version of(he telephone records to

Ayad and asked him lo analy~e them once more und compare them to existing phone records in

the Lihyana databases.       hl 83:6    13. l 08: !(} -l 4. 109:23 l l 0:4, 110: l 8--19. /\_yad did so. and


          6
          Defense counsel-argued that the records were suspect because there wcl'e reports of calls
madeafterAhu Khatallab was in custody. l-1.r"gTr. 153:16- J54:2(ScpL 14.2017). llowcvcr.
the additionul records produci;d for the specific numhcr associalcd wilh Abu Khatalli.lh covered
l·d1ruary 21. 2014 !hrough April 28. 20l4. hcforc /\bu KhaiaJJah w.is eaplurcd in .lune 2014. M_._
82:6--11. /\yad also provided records that included t.:al Is in 2016 for other nun1bcrs Iha! had the
same subscriber-Abu Khaialluh·s hrolher- .listed. )d. 80: l 0-17. As such. the record before the
Court docs not suggcs1 there arc calls made from rhe number associated with J\bu Khatallah alkr
his capture.

                                                        6


                                  REDACTED J CLEARED FOR PUBLIC RELEASE
                                Ri;;.OACTW i CLEARED FOR PUBLIC RELEt\~E




confirmed once again thut tht: telephone records were Libyana call data record.'>. !Q; 83: 15.

8~: I[). 17. 84:25- 85: 1. lie also provided another ccrti ti cation us to the authenticity of the

records. signed on July 18.2017.     LcL 83: 16, 84:4.   This certification. which was made under

penalty of pt:tjury of the laws of Libya. altc~ted that the records ··were made al or near the time

oftht occurrence of the matters set fr1rth therein hy (or fh>111 information transmitted by) a

person with knowkdgc     or those matters.·· "'\Ncre kept in the course of' rcgu/1:1rly conducted
husincss activity," ··v,,·crc made by lhc said business activily as a regular praeticc." and ··jf not

original records. arc duplicates of original records:· Ciov .' s Notice oflntcnt Introduce Telephone

Records App. r·Ayad Certification"); sec also Gov. Ex. 1103.

        Agent ()"Donnell also al tempted to confinn the authenticity of the n:cords by verifyin~

that they included calls that other evidence indicated had occurred in that time period. Hr'g Tr.

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

capture in .lune 2014. Abu Khatallah apparently told Agen1 O'Donnell thc:Jt he had a phone call

with a number ending in 889 l on the evening of the attacks. September 1 l, 2012. around 8:30

p.m.   &   86:9- 87: 1. Agent o·Donncll exa1nined the records and found an entry-documenting a

call with a number ending in &89 l on September 11. 2012 al 8:39 p.m . ..Lg.,_ 87:2-6. In addition.

Abu Khatallah apparently to(d /\gent O'Donnell atx1ut another spccilic cu/I !hat he m.adc to a

phone number ending in 1530011 Seplcmber 11, 2011- :which the recipient of the call also

verincd 10 Agent O'Donnell occurred. Id. 88:7-- 89:4. Agent O'Donnell found an entry in the

telephone records documenting this call too.     l_ci 89:7--9. During th(; hearing. Agent O' Donnel\

lt:stilicd that there were other examples of'tclcphonc calls that he knew occurred and hud verified

appeared on !he records. thollgh he could not recall any .spccilic calls during the hearing .        .!d..,
89: 18-22. l 22:8-22. 126:~0 127:4.


                                                    7



                              REDACTED/ CLEARED FOR PUB UC RELEP..SE
                              REDACTED I CLEARED FOR PUBUC RELEASE




  II.   Legal Standard

        Under the Federal Rules of Evidence. the Court "must decide any preliminary question

about whether ... evidence is admissihlc.'' Fed. R. Fvid. I04(a). _ln making this determination.

the Court ··is not hound by evidence rules, except those on privilege.'· _Id. The proponent of

evidence must show by a preponderance of the evidence that any necessary prerequisites for

admission have been met. ~9urjaib: v. U1Jjtcd Sl~tcs. 483 U.S. 175, 176 ( 1987).

        '!'he Federal Rules of Evidence permit the admission of ··1 aJ record of an act. event.

condition, opinion or diagnosis'· as a business record if:

        (I) the record was made at or near the time by---0r from information transmitted hy- -

           someone with knowledge;

        (2) the record was kept in the course of a regularly conducted activity of a business: and

        (3) making, the record   Wi.ls   a regular practice of that activity.

Fed. R. hid. 803(6). These conditions 111us1 be shown "by the testimony of the custodian or

another qualified witness. or by a certification that complies with Rule 902( I]) or ( 12) or with a

statute permilling certification."   l~L    1-:inally. the record is only admissible if the opponent to

admission ''docs not show that the source of information or the method or circumstances of

preparation indicate a lack of trustworthiness.'· 1iL

        Neither of the ccrti fication options in Rule 902( 11) or ( l 2) apply here since the

Government is seeking to admit foreign records in a criminal case. _Sc1: Fed. R. Evid. 902( 11)

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

in a di';/ case). Instead. the Government relies (111 a statutory pro\'ision. 18 lJ.S.C. ~ 3505. which

provides that --a foreign record   or a regularly conducted activity. or a copy or such record. shall


                                                        8


                            . REDACTED I CLEARED FOR PUBUC RELEASE
                                  REDACTED f CLEARED FOR PUBLIC RELEASE




not be excluded as C\'idencc hy the hearsay ruJc .. in a criminal tast if thcre is a '·f'orcign

certification'· attesting thal:

         (I) such record was made, al or near the lime of the occurrence of the matters set forth.

             by (or from i11formation transmitted by) a person with kno\vlcdge of those matters:

         (2) such record ,,vas hpt in the course ofa regularly conducted business attivity;

         (3) the husincss activity made suc/1 a record a5 a regular practice: and

         (4} if such record is no! !he original. such record is a duplicate of'the original.

J8   U.S.C. § 3505( a)( I). A ··foreign certification·· is defined as '·a written dcdaration made and

signed in a foreign country by the custodian of a foreign record of regularly conducted activity or

another qualified person that. if falsely made, would subject the maker to criminal penalty under

the lc1ws of that country.'' !.ct_,§ 35O5(c)(2). With a valid foreign certi11cation that anests to the

relevant requirements, a foreign record is admissihle '·unless the source of information or the

method or circumstances of preparation indicate lack of trustworthiness."       1t § 35O5(a)(l ).   The

statute ftuiher provides that a party intending to offer foreign husincss records pursuant to the

statlltc shall. "!alt the arraignment or as soon after the arraignment as practicable:· provide

'·written notice of that intention to each other party:· _1~.L. § 35O5(bJ.

         The Govcrnmcn( /,as argued chat the telephone records arc admissible under Rule 80]( 6)

either hccause !he foreign ccrlilication signed by /\yad meets the requirements of section 3505.

see Fed. H. Evid. R.03(6)(O) (permitting the requirements to he shown by a certification that

complies with a statute permitting certification), or hccausl! the testimony of the witnesses al the

Septcmher 14. 2017 bearing along with the ccrtifkation indcpcndently show the requirements of

the Ruic: arc met. llr"g Tr. 1]7:l 1-24 (Sep!. 14. 2017). !·kcause the Court concludes that the




                                                     9
Government has satislicd the requirements or section 3505---and therefore of Rule 803(6)- -i!

need not address the Government's second argument.

  JI I.   Ana]ysis

          /\. Forcjg!}_CcrtiJication Rcguircmcnt

          The Government contends fm;l that Ayad's certification. signed on July l R_ 2()17. meets

the requirements of section 3505. ln his ecrcitkation. /\y,id declared 1/Jal the lclcphonc records:

          (I) \-verc made at or ncllr the time of lhc occurrence of the mancrs set fiJrth therein. hy (or

                from information transmitted by) a person with knowledge of the matters;

          (2)   were kept in the course   or regularly conducted business activities:
          {3) were rnade by the said business activity as u regular prnctice; and

          (4) if not original records. are duplicates of original records.

Ayad Certification. Thus. Ayad·s <.:enification allests to the information required by suhsection

(a)( I). In addition. the dcclaralion was sworn under penalty of pe~jury of lhc laws of Libya. as

necessary to be a "foreign certification·· under subsection (c).

          The final requirement in subsection (c) is that, the declaration be made by a "custodian of

a foreign record of regularly conducted activity or another qualified person .. , The D.C. Circuit

bas slated, in analyzing the identical language in Ruic 803{6) and Rule 902( J l ). that a custodian

or qualilied witness ''need 1101   h<l\'C   pcr.rnnal kno\,vletjgc   of the actual creation of the document."
                                                                I

Uni!cd Simes v. Addchinti. 510 F.3d 319,325 (D.C. Cir. 2007) (4uoting_l)J1itedS_tatcs_~

.Yv'illia1J1s, 205 F.Jd 23. 34 (2d Cir. 2000)) (Ruic 902( l I)): seea!so United Statesv. fahnbullch.




                                                         10



                                 f.LDAC:TED / CLEARED FOR PUBL'-~ Rt.-t~J...cA" c~
                                                                       IV       ,.JC.
                                  ,,:ErJ~CTl:D I r.r EA.REn !='QR PUBUC RELEASE




                                                         7
752 l-'.3d 470,479 (D.C. Cir. 2014) (Ruic 803(6)).           Rather. a ··custodian or other quali/icd

witness·· ncc<l only bt: ·•familiar with the rctord-kceping procedures of the organization ... lJnjtc<l

Stat~Bakcr. 458 J-'.3d 513,518 (6th Cir. 2006) {citation omitted): .~ce ulw United States v,.

Estrella. 72 r .Jd 920 (D.C. Cir. 1995) (unpuhlishcd table decision)('' In practice ... a party

wishing to inlroducc phone bills cilso gencn:illy prc.~cnts an employee of the pertinent telephone

company who is knowledgeable about the eompany·s process in recording. compiling. and

printing the data that appears in the phone bill.").x

       Under this standard. !\yad is ·'another qualified person .. who can testify to the record

keeping system of Li byana. /\yad ""·as among the founders of Libyana and has been in vol vcd

with the company since 2004. Hr·!) Tr. 7.3 :21-23 (Sept. 14. 20 I 7). I le informed Agent

O'Donnell that he played a role in des·1gning the formal of Lihyana· s records .        .l~t 76: I- 3.
Moreover. Ayad's ability to acquire Libyana telephone records for Agent O'Donnell ---alheit

from 2014. rather than 2012-- and his knowledge of the status ofLibyana data records further

illuslrates his knowledge of and familiarity wirh that system. sg~ .i.9_, 80: I 0-12. 82:6-     JL   l 0J:24-

l 04: l. J-'inally. Ayad informed Agent ff Donnell of his general familiarity with the

rceordkeeping system and occupies a role within l..ibyana-...cro nnd rormcr executive


       ---------·--·-
        7
         Courts interpret the language:: in section 3505 consistently with the analogous language
in Ruic 803(6 ). Sec, c .g .. United States v. Ro~·s. J} F.}d l 507. 1515 () l th Cir. 1994) (citing
H.R. Rep. No. 98-907, at 3 (1984)).
        8
           Sec also. e.g .. Un'1ted States v. Bclloc-J-!~1mmd~. 667 F. /\pp·x 507. 508 (5111 Cir.
20 I6) ("We have held that a qua Iified witness for purpose of Rule 803( 6) is one who t:an explain
the sysicm of record keeping and vouch that the requirements or the Rule 803(6} arc met. .. .''):
Unikd States v._Childs, 5 F.Jd 1328. 1334 (9th Cir. 1993) (''The phrase ·other qualified witness·
is broadly interpreted lo require only that the witness understand the record-keeping system.··
(c:itation omitted)): Unitcd.Statcs_v. Wab(es. 73 I F.2d 440. 449 (7th Cir. l 984) ( .. The witness
need only have knowledg.c of the procedures under which the records were cremcd.").

                                                    11


                            Rl:D/\CTED I CL Ell.PED !'.'OR PU8UC RELEASE
                                 PFnl\"'.TFf" .' rtE:f.RED FOR PUBUC RELEASE




committee member. see     ig_,   72:6-9, 73:24--74:3 -that would !end co maki:: him famifor with the

organization·s rccordkccning system. For all these reasons. the Court concludes he is o qualified

person for purposes of subsection (c). 1lis declaration thus counts as a ··foreign declaration·'

under sel:tion 3505, and the Government has shown that these records meet the requircmen!s for

admis5ion under that statute.

        Abu Khatallah ntverthcless challenges the certification on two main grounds. Firs!. he

points to Ayad's alleged hias. noting that Ayad is a Qaddafi loyalist. 1lr"g Tr. 150:2- (0 (Sept.

14. 2017). I lowever, any bias on the part or Ayad does not negate the Courrs conclusion that-

given his experience with and role at Libyana and ability to obtain Libyana eall data records

/\yad bas the re4uisitc knowledge of the 1.ibyana rccordkecping system lo be a .;qualified

person" under existing precedent.

        Second. Abu Khatallah contends the certification is invalid because Ayad was unable to

compare the rcconls being offered by the Government to the original records in Libyana·s

database due to the subsequent cCJrruption of the underlying data. Id. 144: 17-22, 146: 11-19.

/\bu Khatallah essentially argues that a custodian must he able to cross-check each entry in the

records to verify their accuracy in order to authenticate them.       &   146: J J. l 9. 148:8·· 11. But

"'/1/hcre is no n:4uiremcnt that the witness who lay;; the foundation· for admission of a business

record 'be ahlc to personally attest     lo   its accuracy."' United States. v. Smith, 804 F.)d 724, 729

(5th Cir. 2015) (citation omitted):~-~~ also !)nited Stal.£:.'LL W~in, 521 F. J\pp·x 138- 140 (4th

Cir. 2013) ("Wein a/so incorreclly asserts that        rzhe cusiodianj was required to   conlirm the

accuracy of the records in order to be u qualified witrn:ss."). Nor docs the Court ··need [to.I

condt1ct a casc-hy-casc inquiry into each'' entry in the nx:or<l tn determine the record's

admissibility. United Stares v. Brg_~!l.- 822 1-'.]d 966. 973 (7lll Cir. 2016): ~?.J,so Uni1_g9_ State,'.;


                                                        12

                                   fffCl·~C:TED, CLEARED FOR PUBLIC RELEASE
                                     ,JF!"\ ~ r'TFQ   I
                                                          rt EARED FOR PUBLIC RELEASE




y. Towns. 718 r.~d 404. 4()9. 10 (5th C.ir. 2013) (holding district court wa.<; nut required lU call

individual cashiers to verify accuracy of specific transactions in records lo determine

c1dmissibility}. J\ftcr all. "uny claim concerning the.: n:cords' accura<:y i.s not the province of Rule

803(6).'. 19~. 718 F.3d rtt 410.

        So long as the cirwm.'ilances do not imJicatc unlrus1worthincss· ·· to which the COLtrt v,,jlJ

now turn-the custodian·s failure to vouch for the accuracy of'the records or to compare the

records line-by-line to the originals does not invalidate J\yad·s ce11ifo:ation. Because J\bu

Khatallah"s arguments do not negate the validity of the certification. the Cou11 holds that the

Government lws shown by a preponderance of the evidence that the requirements of section

3505(a)( l) are met.

        B. Trust~ 011hinfsS of the_ Records
                   1




        Even   if the requirements of subsection J505(a)(l )(A)--(D) are met. the foreign records arc

not admissible if "the source of informatio11 or the method or circumstances of preparation

indicate a lack of trustworthiness." f8 U.S.C. § 3S05(u)(IJ. As with Ruic 803(6)-which is

interpreted in parallel with section 3505. _see. e.g .. Ross, 33 F.3d at 1515-hy showing the

requirements for admission are met the Governmem has nrndc a prima facie case for

trustworthiness and the burden now shifts to the defendant. as the opponent               or udmission. to
prove untrustworthiness. See, C.£:.. Shcltonv Cons. Prod. SafctvComm·n. 277 F.3d 998, 1010

(8th Cir. 2002) (identical lcmguage in prc-20/ I version of Rule 803(6) places the ·'burden               or
proving inadm issi bi Ii ty'· on the opponent once requirements of rule arc met): Gracf.v..:. Che1}1ic:al

L<!aman Corp.:., 106 F.3<l l 12, 118 (5th Cir. 1997) (same):         ~.C ,111 re !5.orean 1\irlint:sJ)isaster or
.fuJ)Jcmhe::r 1, l ~8J. 932 F.2d 14 75. l 482-83 ( D.C. Cir. 1991) (same interpretation of identical

ltrnguage in prc-201 I version of Ruic 803(8)).


                                                            13


                                      Hc01'.,Cl tU i CU:.ARED FOR PUSLiC REU::ASc
                                   REDACTED i CLEARED f'.'OP PUBUC RELE/\S!:




        Ahu Khatalluh has raised some indicia of untrust\.vorthirn.:ss. For instam:t:. he points to

certain discrepuncies between the 2014 records and the 2012 records. such as diffcn.:nc(;!s in the

titles of the column headings and a column listing a sequential order for the call's in the 2012

records that does not appear on the 2014 records. f[r'g Tr. 118: I 3--15. I 16: 19-21. 123:J.-5

(Sept. 14,   2017). Such discrepancies. however. arc equally (if not more) compatible with

i nnoccnt ex planat ions----sucli as!




                                                          ILibyw1a periodically updating the format of its
'------------------~
database-as with a scenario involving the intentional fabrication or m1:1nipuJation of the records.

        Jn any event. the Court finds that other C\'idcncc of trustworthiness outweig,hs any indic1a

of unreliability. As an initial matter. the evidence supports the authenticity of these records as

I .ibyana records!




                                                                                                                       I In addition.
'----------------------------------
the prefix of the phone number is one used exclusively hy L.ibyana.                                      I.!L 75:2 17. Finally.
l\.yad·s ubility lo obtain further records for this telephone number--· albeit from a different time

period-again solidifies the conclusion that this number was serviced by Libyana and these

records are thus their business records



        Additionally. the cvillenec undercuts any concern that these records.wen.: fobricatedD

                                                                                       For on~. A.gen! o·Donncll testified

crcJibly that the record contains calls that olhcr evidence inJicates occurred. Id. 87:4--6. 89:7-8,


                                                                    14


                                    ·.·• L.,r/'\'>..,>
                                    J\i.,.
                                                '.. ·TCD
                                                       I._
                                                           1· ,·LC:;,
                                                              V  !..M,
                                                                      i'.(ED   FOR Pt.JBLI·c :,'"'El, .. ,A-
                                                                                                  "~c:,.\::it:
89: 18- 22.j




        Nor is there any evidence of manipulation after the records were first obtained. I




1----------------~-----,
                                          IThe record contains no evidence of any manipulation
                                                       and the burden is on the defendant to show

evidence of untrustworthiness. As such, the record is silent as to any indication of the alteration

of the records                                           and suppons the conclusion that the

records obtained were Lihyana call records. In sum. the Court is rersuadcd that evidence

supponing the trustworthiness cifthe phone records outweighs any indicia of their unreliability.

        C. Notic.f:

        Abu Khatallah finally argues that the records should not be admitted because the

Government failed to meet the notice requirement ofsection 3505(b). lir·g Tr. 151 :20 {Sert. 14,

2017): Dcf."s Supp. Opp'n 3--4. Section 3505(h) states that a party seeking lo introduce foreign

rcc:ord.s pursuant to the statute must provide "written notice or that intention to the other party" at

'"the arraignment or as soon after the arraignment as J)iJcticablc." 18 lJ.S.C. § 3505(b). Abu

Khatallah was arraigned in 2014 and the Oovcrnmcnt clearly intended to use these records by

January 2017. when it first obtained a certil'1cation from /\yad. However. the Government did


                                                  ]5
                                kEDACTED i CLEARED FOR PUBLIC RELEASE




not file its motion to admit the records until August 17. 2017. almost seven months af"lcr it

obtain<:d the first certification and over three years after arraignment. The Government

nevertheless contends that its written notice of August 17. 20 I 7 was fikd as soon as pn.1cticable

in light of the difliculties in obtaining the certiticalion and the attempts to have /\.yad reproduce

the underlying dala. lfr'g Tr. 139:4 l 9 (Sept. 14.2017).

       The Court need not decide whether the Government provided notice as soon as

praeticc.Jhlc hecause it concludes that the records al'e admissible in any event. For one. 1he statute

does not provide for automatic exclusion ofthe rct:ords if there is a failure to provide timely

notice. See Uni tcd States v. Newell, 239 F.3d 9 I 7. 92 I 0th Cir. 200 I) ("The consequ~nce of

such failure /to givt" notiGej is not. however. as NQ\Ncll argues_ automatic exclusion from

evidence."'): United States v. Garcia Abrego. ! 41 F.3d 142. 177 (5th Cir. 1998) (''!W]e conclude

that this lack of diligence did not render the records inadmissible under the statute."): United

States v. Gas1:1cr.ini, No. l 6-cr-441. 2017 \VL 3140366. at* IO (LO.:'/. Y.July21. 20 l 7)

('"Defendant errs in proposing that uUlomatic exclusion should result frum tile Govcrnmcnz's

purported delay."): United States v._Kilbride. No. 05-cr-370, 2007 WJ. !662070. at* I (D. Ariz.

June 4. 2007) c·Scction 3505(6) docs    1101   provide for the automatic exclusion of evidence.").

       /\s the Fifth Circuit explained in Garcia J\brcgo. the requirements that a record must meet

for admission arc laid out in subsection (a) of section 3505. I 41 F.3d at I 77: ~ 18 lJ .S.C.

§ 3505(a). This :;ubscction makes no reference to (he notice r<:guircmc11t in suhs<:clion (b). I 8

U.S.C. ~ 3505(a): see also Gart;ia Abrego. 141 F.3d al 177. Additionally. as the Fifih Circuit has

explained in more detail. the entire purpose of section 3505 v,•as lo rnake it easier to admit

foreign records into evidence; the statutory provision ··ww, not intended to add technical

roadblocks to the admission of' foreign records bL1I. rather. 10 streamline the admission of such


                                                     16



                                i,i:J.-,C IE[; J CU:Ait:D rOR PUBUC RELEASE
                               REDACTED I CLf:AR!::D FOR PUBUC RELEASE




records." .Q_arcia A.-hre!!o, 141 F3d ar 178 (quo1i11g Uni1cd Swres 1'. Stricklcmd. 935 f.2d 822.

831 (7th Cir. J 991 )).

          finally. the exclusion of othcrwisc-admissibk evidence as     c.1   remedy for non-

constitutional \'iolations is strongly disfavored by the Supreme Court. ~~~,. Sanchez-Llamas

v. Q~Qfl. 548 U.S. 33 I. 348 . -50 (2006} (exclusion of evidence not appropriate for evidence

obtained in violation of the Vienna Convention): JJnil~qSla_tcs     v. Cm.:~rcs. 440         U.S. 74 L 753-54

( J979)   (exclusion not appropriate for evidence obtaim:d in violation of agency rcg,ulations):

United States v. Donowm. 429 U.S. 4J J. 433 & n.22 () 977) (exclusion nol appropri,:He for

evidence obtained in violation of Title Ill's wiretapping requiremcnts).Q This precedent forther

suppons the conclusion that precluding, the admission of this evidence solely because of the

Government"s delay in providing written notice of its intent to use it-. which. again. is not a

statutory prerequisite for admission -is inappropriate.

          Exclusion of the evidence may be appropriate nevertheless if the Government's delay in

providing notice has prejudiced the defendant. See_ :tJcwe.[I_. 239 F.3d       al   92.1; s:i Garcia-Abrego.

141 F.}d al 178 & n.26. The Court concludes that it has not. Dcfonsc counsel has long heen

aware of the existence of rhc records: the Government produced the records              10   thetn in discovery


          ------~··------
              1
          '    In fact. several Courts of Appeals have read this Supreme Court precedent to prohibit
exclusion of evidence as a sanction for statL1tory violations unless the statute itself requires it.
Sce. ..r..:.g.. United Stales v. Gucrrerg, 768 F.}d 351. 358 (5th Cir. 2014) ("There is no basis for
_judicial imposition of the exclusionary rule for a statutory violation when Congress has not
provided thc1r rcmccly.'·J: !)nitcd Stales v. Clenncv. 631 FJcl 658, 667 ( 4th Cir. 2011) ("In the
stututory context. suppression is a creature of statute and its availability depends on the statutory
texL ... "): United States v. Adbi, 463 F..3d 547. 556 (6rh Cir. 2006) ("'ITJllcre is no exclusionary
rule g,encrnlly applicahle to statutory violations."'): United States_\:'...,__lQmbcra-Cam_orlin.!.@. 206
F.3d 882. 886 (9th Cir. 2000) ("lT]his and other circuits have held in recent years thHt an
exclusionary rule is typically available only for constitutionnl violations. not for statutory or
treaty violations.'').

                                                    17
nearly three years ago. in November 2014. Ciov."s Notice of Intent Introduce Telephone Records

2 n.1: er. Kilbride. 2007 WL I 662070. ut * l (holding cklcndant was not prejudiced by failure             to

comply with section JS0S(b) where. among other things. '"the Government produced the records

to Defendants ... substantiully more than one year bdcm.: trial'"): !,J_1Jited 5ig1~cs v.   Uovis.   No.

lJ4-cr- 1l. I 996 WL l 65011.   al   *3 (D. V./. Feb. 12. 1996) ("Assumin~ section 3505 does apply.

the Court linds that the defendant ,-vas on notice that a foreign document was going to be

introduced, because defendant was provided with a copy of the documents during di.~covcry well

heforc trial.''). aff_d. 106 F.3d 387 (3d Cir. I 996).

        Defense counsel has also long been aware of the Government's intent lo use these records

at trial. Defense counsel told the Courl at 1he hearing that .. [tJhc government has from the very .

beginning said that these phone records arc a pillc1r of their c1Jse." 1--lr·g Tr. 152:22- 24 (Sept. 14.

2017); see also id. 153:3--0 (The Court: "'When did the government say they were central and

critical to the case?" Defense counsel: "At the very firs! debriefing they gave us."). And defense

counsel also slated that in early 20 I 7 they discus.sed the admissibility of the records with

government cou'!se), informing them they needed a certification lo admit them. Def.'s Supp.

Opp'n 3. Even if the Government did not provide formal wrillen notice of the intent to use

foreign rer.:ords al trial until August 2017. defense: counsel has long had some notice of that

intent. Ahu Khatallah cannot now d<1im to be entirely blindsiJc:d by the Government seeking to

admit the telephone records into cvic.kncc.

        Given defense counsel's longstanding a\vtm:ness of the Government's general intent lo

use the records and longstanding possession of the records. the Court concludes they have had

adequate time to inv(;stigatc into the records' authenticity and accuracy nncl arc therefore not

prejl1diccd by any delay in receiving written notice. Cf. Newell. 239 F.3d ell 92 l (finding no


                                                     l8
rrejudice where. among other things, the dtli:ndunt ,ilrl·ady "knew thl' govc:mmenr was going to

use 1the records! at trial"): Ki !bride. 2007 WI.. 1662070,        at   '"1 (finding no prejudice where.

among olher things ... the Government produced the records to Dcfcndun!s ... substantially more

than one yei:lr before trial"); QQ.vis. 1996 WL 1650 I I. at "'3 (linding no prejudice where

'·Jefcndanr w11s provided with a copy of the documents during discovery well before triar· and

the'· foreign nature of the I rct.:nrdJ is clear from its fm:c .. ).

        Abu Khatallah · s arguments to the contrary arc unpersuasive. Virst. Abu Khatallah insists

that the records "are critical" and ·'will change cverythi ng in this trial." 1-l r' g Tr. 152: 18-2 l

(Sept. l 4, 2017): sec also id. l 53: I J-15. But the relevant prejudice is that which comes from

from the delayed noliw-no1 from !he records themselves. Thal the records might be

particularly damaging to Abu Khatallah does not indicate any prejudice from a delay in notice.

To the extent he is contending prejudice from a need to change trial strategy at this late date. this

assertion is belied by defense counsel's a1,vareness for sonic time, us discussed above, that !he

Governmc1i1 intended to use these records at triul and thus tha( it needed to prepare to respond to

their use.

        Ahu Khatallah also contends that he has b1;;en prejudiced because of insufficient time to

investigate the records, particularly the Ayad Certification. Hr'g Tr. 151 :4-11 (Sep!. 14. 2017).

But defense counsel has hnd a copy of these records since 2014. when the Government turned

them over in discovery. anu has known for some time that the Govemmenl intends                  to use   the

rcec,rds. providing adcquule time to investigate their authenticity. And whi_le the Government

may have only provided cleknse counsel wilh /\yact·s ccrtilieation in /\ugust 2017. the statute

requires notice only of the intem lo admit the foreign records under section 3505. It does not say

the party propom:nt must proYide the other side the ct.:rtilication in advance ..Sec 18 U.S.C. ~


                                                         19



                                RELJACTED I CLiARED FOR. PUBLIC RELEAS;':
                                        ,~~U1~CTED ! CU:,\RED FCR PUBUC RELEASE




3505(h) (.. I A] party intending to nfft:r in evidence under this section a foreign record of regularly

conducted activity shull provide written notice 411w1 intenliun        10   each other rany:· (emphasis

added}). Nor does the statute require the party proponent to. c1s the Cio·vcrnment did here. seek to

ad mil the records into evidence before trial; rather. the party proroncnt merely needs to provide

written notice of i ls intent   lo   admit the evidence and the obfigulion is on che parcy opponent 10

object prior lo trial or waive any objection. ~.cc id. ln uny event, the Government provided

defense counsel a cory of the certification nearly u month before the Court held its hearing and.

given the length of time defense counsel has had the underlying records and some awareness of

the Government's intent to admit thei11. that was adequate to allow investigation into their

reliability. Abu Kbatallh has thus not been so prejudiced by any delay in receiving formal

written notice of the Government"s intent as to ju~tify e\c.:luding the otherwise-admissible

telephone records.

        D. Confrontation Clause

        Finally. the Confrontation Clause does not bar the admission of evidence that qualifies as

business records. The Supreme Court has 1·ecognizcd that ··jb}usiness and public records arc

generally admissible absent confrontation'" because ··rhey are not testimonial." Melendez-Diaz

v. Massachusetts, 557 U.S. 305. 324 (2009). The telephone records here were             origi11ally ··created

for the admi11istration of an entily"s affairs and not for the purpose of establishing or proving

some foct at trial'" and arc therefore admissible without violating the Confrontation Clause. Id.:

~ce also United States v .. Yeley-Davis. 632 F.3d 673. 679 ( 10th Cir. 201 l) (holding that

admission of telephone records as business records did not violate Confrontation Clause): United

States v._Grccn. 396 F. App'x 573. 575 ( I l th Cir. 2010) (same).




                                                        20
 IV.   Conclusion

       For the foregoing reasons. it is hereby

       ORDER.ED that /285] the Government's Motion to J\dmit Telephone Records is

GRANTED.

       SO ORDERED.




                                                      Cii~l!fR~
                                                      United States District Judge

Date: September 21 , 2017




                                                 21
