Najibullah Zazi's Terror Case May Be Moved to New York

By Jeralyn, Section War on Terror
Posted on Tue Sep 22, 2009 at 07:57:00 PM EST
Tags: Najibullah Zazi (all tags)

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Denver CBS reporter Rick Sallinger, who usually has good information and sources, just reported on TV that Najibullah Zazi's terror case may be moved to New York, while his father's false statements case would remain here.

If that's true, I'd expect new charges to be filed against Zazi since venue isn't proper in New York on the false statements charges. (He made the statements in Colorado.)

Zazi undoubtedly will not be happy to trade the FDC in Englewood, CO for MCC Manhattan or MDC Brooklyn. But it makes sense for the Government to prosecute this "plot" as a single case in a single jurisdiction. And it makes even more sense for the Government to do it now. [More...]

Cases charged by complaint must be presented to a grand jury for indictment within 30 days. Once the Indictment is returned, the defendant no longer gets a preliminary hearing.

Right now, Zazi's detention and preliminary hearing are set for Thursday. Unless the Government can get an Indictment from a grand jury in Colorado by Thursday (and we may not have one sitting this week before Thursday) the Government will have to put on some evidence at Zazi's hearing they likely would prefer to keep under wraps. One of the requirements of the false statements charge is that the statement is "material." It's not enough to show just a false statement.

If there is a grand jury sitting in New York today or tomorrow (more likely since it's a big city with more investigations pending), the Government might well get a quick indictment against Zazi there, which would enable them to dismiss the case here before Thursday's hearing. As long as the Government seeks detention against Zazi on the charges in the New York Indictment, he'd be transferred to New York in custody.

That still leaves the senior Zazi's preliminary hearing. If he is released on bond by Thursday, his lawyers might not object to continuing the hearing if the Government gives them an incentive to do so.

If Sallinger is right, it may be quite a while before the public gets to learn any actual evidence about the supposed terror plot in these cases.

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Najibullah Zazi's Terror Case May Be Moved to New York | 9 comments (9 topical)

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If Zaki isn't in the fed. gov't.'s custody, (none / 0) (#1)
by oculus on Tue Sep 22, 2009 at 07:58:33 PM EST

is it possible the grand jury in NY will proceed in his absence?

: The defendant need not be in custody (none / 0) (#3)
by Peter G on Tue Sep 22, 2009 at 08:24:56 PM EST

to be indicted. Many indictments are returned against fugitives, and remain pending until the person is captured. Osama bin Laden is wanted under an indictment in the Southern District of New York for the African embassy bombings, and has been for years.

: there's no reason he has to be (none / 0) (#4)
by Jeralyn on Tue Sep 22, 2009 at 08:51:55 PM EST

in NY for the grand jury to indict him. They just need the testimony of an agent.

Venue must be correct (none / 0) (#2)
by Peter G on Tue Sep 22, 2009 at 08:22:03 PM EST

... under the Sixth Amendment and Fed.R.Crim.P. 18 for each count, not just for some. A charge of false statements, based on a proffer made in Colorado, cannot be included in a SDNY indictment. (Venue on a false statements count lies where the statements were made, except for written statements included on a government form required by law to be filed in another district.) If charges are to be brought against Zazi in federal court in NY, it means the "false statements" charges in D.Colo. were just a placeholder, a temporary pretext to arrest and hold him while the feds in NY got their sh*t together. My theory: Expect the D.Colo. complaint to be dismissed ten minutes before the preliminary hearing was due to begin, upon announcement of a S.D.N.Y. indictment containing more serious charges.

Agreed (none / 0) (#5)
by Jeralyn on Tue Sep 22, 2009 at 08:55:41 PM EST

the false statements charge were a placeholder. Yes, they need different charges because there is no venue. The use of the word "alone" in my post was confusing, I deleted it. Thanks, Peter.


Can't Thursday's date be extended (none / 0) (#6)
by Peter G on Tue Sep 22, 2009 at 09:19:48 PM EST

even w/o the detained defendant's consent, if the gov't makes a motion under FRCrP 5.1(d) and has some good reason, so long as the time does not exceed 10 working days from the initial appearance (that is, two weeks, which of course they are not even approaching at this point)? Three days for the detention hearing, yes, but that's not a strict deadline for the prelim.


they will have to provide evidence (none / 0) (#7)
by Jeralyn on Tue Sep 22, 2009 at 09:45:10 PM EST

at the detention hearing as to why a person charged only with false statements shouldn't get bond. There's no rebuttable presumption for detention for that charge. His father is charged with the same thing and got bond. So they would have to present facts about the terror stuff and and they don't want to do that.

I don't think it does them any good to have the detention hearing but continue the prelim. If they want to keep everything under wraps, they are better off dismissing the case here before the hearing.

For the prelim, I can see a delay being granted. The rule says,"If the defendant does not consent, the magistrate judge may extend the time limits only on a showing that extraordinary circumstances exist and justice requires the delay."

Since the Judge has indicated he wants to examine the procedures regarding FISA, he could well find extraordinary circumstances and grant a continuance. But I also don't think they need that stuff for the PH. I think testifying as to what they put in their complaint alone would be probable cause for the false statements at a prelim and the judge won't let them use the hearing as a discovery device.

So, my thought is it's the detention hearing they don't want to have right now.


: Got it (none / 0) (#8)
by Peter G on Tue Sep 22, 2009 at 09:51:55 PM EST

sounds right

i'm catching a whiff (none / 0) (#9)
by cpinva on Wed Sep 23, 2009 at 09:53:35 AM EST

of rotting fish in this whole thing. all sound and fury, in the end signifying nothing, etc, etc.

it would seem our major law enforcement agencies have developed the capacity for snagging the least competent potential "terrorists" among us, and making it sound as though each is bin laden's twice as evil twin brother.

i do not believe.