Terrorism Trials: Civilian Court

Summary of Judge Cooper's Opinion on Motion in Limine in United States v. Abu Khatallah

By Sarah Grant
Wednesday, September 13, 2017, 8:30 AM

On September 7, U.S. District Judge Christopher R. Cooper of the District of Columbia issued an opinion in the case of United States v. Abu Khatallah, granting in part and denying in part the Government’s pretrial motion to admit “other acts” evidence. Pursuant to Federal Rule of Evidence 404(b), evidence of a crime, wrong, or other act besides that with which the defendant was charged may be admissible for “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident,” but is inadmissible for proving “a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Rule 403 allows a judge to “exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

The following are the five categories of other acts evidence the Government sought to admit and Judge Cooper’s ruling on each:

  1. Evidence of the defendant’s preparation for the September 2012 attack on the U.S. Mission and Annex in Benghazi, Libya: “[T]he preparatory acts are admissible as to all counts, though the defense is entitled to a limiting instruction for the non-conspiracy counts should it desire one.”
  2. Evidence of the defendant’s anti-American animus: “The Court will prohibit, under Rule 403, the admission of evidence that the defendant sought to threaten or kill the next American ambassador in retaliation for al-Libi’s capture or that well after the September 2012 attacks he ordered his associates to kill all Americans located in Benghazi. The Court will grant the Government’s motion with respect to the other specified evidence of anti-American animus.”
  3. Evidence of the defendant’s relationships and history with his alleged co-conspirators: “These two prior acts are particularly likely to pose a risk of the jury engaging in prohibited propensity reasoning given their similarity to the acts charged here. As such, the Court will prohibit the introduction of this evidence under Rule 403. The Court will grant the Government’s motion with respect to the other specified evidence of defendant’s relationships with his co-conspirators.”
  4. Evidence of the defendant’s facility with and access to mortars: “The defendant’s familiarity with mortars is probative to his ability to be involved in the Annex phase of the attack. This information is not unduly prejudicial since it is not particularly inflammatory, especially given the ongoing conflict in Libya and the relatively inflammatory nature of the charged offenses. Thus, the probative value is not substantially outweighed by the risk of prejudice and the evidence is admissible.”
  5. Evidence that the defendant increased security and hid out following the capture of Abu Anas al-Libi by American forces in 2013: "One reasonable inference that can be drawn from the defendant’s decision to increase security after the capture of al-Libi is that the defendant feared American forces would seek to capture him as well...That there may be innocent explanations as well does not negate the permissible use for this information, and the defense is free to elicit evidence of such an explanation for the defendant’s actions...Thus, the risk of prejudice does not substantially outweigh its likely probative value.

The full document is included below: