Case 1:07-cr-00543-DLI Document 377 Filed 07/14/10 Page 2 of 6 PageID #: 2760

Pursuant to Title 18, United States Code, Section 3500, the

government provided reports and other material for the witnesses
who seized the photographs on May 3, 2010. The government again
provided the defendant with the photographs, marked as government
exhibits, substantially in advance of opening statements and the
taking of trial testimony.
On June 30, 2010, counsel for defendant Abdul Kadir
delivered an opening statement in which she argued that Kadir was
an upstanding citizen in Guyana and a hardworking community
leader who never had any interest in the plot to attack JFK
Airport. (Trial Transcript ("T") 2385). During crossexamination, counsel has repeatedly sought to portray Kadir as
morally opposed to offensive violent activity. (T 3225, 3268,
3270-71, 3272-73, 3286). The defendant has indicated that he
intends to testify, (T 3254), and has indicated his intent to
call at least one character witness at the trial. See Proposed
Jury Instructions for defendant Kadir, filed June 26, 2010,
Docket Number 325, at 18-19 (requesting jury instruction on
testimony of character witness).
On July 13, 2010, the defendant filed a motion to
preclude the admission of the attached photographs.
II.

The Photographs Seized from the Defendants Possession

at the Time of His Arrest En Route to Iran Are
Admissible

The government seeks to introduce into evidence the

enclosed photographs, which were seized from defendant Kadir's
possession at the time of his arrest, as proof of Kadir's intent
and state of mind as he traveled to Iran in furtherance of the
conspiracy to attack John F. Kennedy airport.
As in all criminal cases, the government bears the
burden of proving the defendants mens rea in connection with the
charged crimes. In the instant case, during recorded
conversations that were admitted into evidence as Government
Exhibits 224 and 225, Kareem Ibrahim, a co-conspirator and
longtime friend of defendant Kadir, indicated that the next step
in the plot to attack John F. Kennedy International Airport
involved presenting the plot to contacts in Iran. Just eight
days later, Kadir was arrested in Trinidad en route to Iran in
possession of the enclosed photographs, which depict Kadir and
family members brandishing numerous firearms in militant poses.
The photographs and the circumstances of their seizure are thus

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admissible as direct evidence of Kadirs intent and state of mind

during his trip to Iran in furtherance of the charged conspiracy.
The probative value of the photographs is enhanced
significantly by the defendants claims during counsels opening
statement and during cross-examination. Defendant Kadir has
advanced the position that he never had any interest in this
plot and that his indictment was the result of the government's
agenda. (Tr. 2385). In her opening statement, counsel for
Kadir focused the jurys attention on the defendants character
in claiming that he did not have the requisite intent to commit
the crimes charged. (T 2385-2387). Defense counsel argued to
the jury that Kadir is a man who lives in the country of Guyana,
was well-respected, 9 children, 24 grandchildren, working guy
and that he was just a man who had a dream to build a mosque, a
Shiite mosque, in Guyana. (Tr. 2385, 2387). Counsel also
characterized Kadirs travels to Iran as purely religious and
innocent, as Shiite Muslims go to Iran just as Catholics go to
the Vatican, and just because he sent his children to study in
Iran, in university where they teach things like ethics and
foreign languages that does not make him a bad person. (Tr.
2385-86). During cross-examination of the governments
witnesses, counsel for defendant Kadir repeatedly asserted that
Kadir did not condone aggression, nor even defensive violence in
Guyana, as, according to defense counsel, institutions in need of
defense had not been built. (T 3225, 3268, 3270-71, 3272-73,
3286). The photographs themselves directly rebut the defendants
claims regarding his purportedly peaceful character. Moreover,
the defendants decision to carry those photographs with him to
Iran on his trip to present the plot to attack JFK Airport to
interested parties clearly demonstrates the seriousness of his
intent to further the goals of the conspiracy despite his claims
to the contrary.
In United States v. Khalil, 214 F.3d 111 (2d Cir.
2000), the Second Circuit upheld the admission of similar
photographic evidence in a factual scenario nearly identical to
that presented in this case. In Khalil, where the defendant was
charged with conspiring and threatening to use a weapon of mass
destruction, the government introduced in its case-in-chief
photographs of the defendant brandishing a shotgun while wearing
apparel associated with violent militants. Id. at 116. ThenUnited States District Judge Reena Raggi admitted the photographs
as evidence of the defendants state of mind and to rebut defense
arguments that the defendant lacked intent to commit the crime,
as he claimed that he had no destructive objective and merely
intended to obtain a reward from the government by pretending to
prevent a terrorist attack. Id. at 122. The Second Circuit held
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that Judge Raggis decision to admit the photographs was well

within the Courts discretion and rejected the defendants claim
of error. Id. The Second Circuit reasoned that the photographs
were relevant to rebut the defense portrayals of [the defendant]
as having no destructive objective and posing no real threat.
Id.
As in Khalil, the photographs in this case depict the
defendant and his family members brandishing firearms, in a
manner associated with militancy. Similarly, as in Khalil, the
defense has argued that the defendant lacked intent to commit the
crime, had no interest in violence and merely intended to obtain
money by pretending to be involved in a terrorist plot. Applying
Khalil to the facts at hand, the Court should admit the enclosed
photographs into evidence.
The defendant argues that admission of the photographs
runs afoul of Rule 404(b) of the Federal Rules of Evidence (Rule
404(b)). He is incorrect. First, [e]vidence of uncharged
criminal activity is not considered other crimes evidence . . .
if it arose out of the same transaction or series of transactions
as the charged offense, if it is inextricably intertwined with
the evidence regarding the charged offense, or if it is necessary
to complete the story of the crime on trial. Court Order, June
3, 2010, Docket Number 271, at 3 (internal quotation omitted).
As set forth above, the photographs are direct proof of an
element of the charged offense, and arose out of the same series
of transactions as the charged offenses, as they were seized from
the defendant's possession as he traveled to Iran in furtherance
of the conspiracy to attack John F. Kennedy International
Airport.
Moreover, to the extent that Rule 404(b) applies here,
the evidence is clearly admissible under the Second Circuit's
inclusionary approach to that Rule. Court Order, June 3, 2010,
Docket Number 271, at 4. In particular, evidence of other acts
is correctly admitted if: (1) it [is] offered for a proper
purpose; (2) it [is] relevant to a disputed trial issue; (3) its
probative value is [not] substantially outweighed by its possible
[unfair] prejudice; and (4) the trial court administer[s] a
proper limiting instruction. Id. (internal quotation omitted).
As set forth above, the government is offering the evidence for
the proper purpose of proving the defendant's intent. See Fed.
R. Evid. 404(b) (including intent in non-exhaustive list of
proper purposes). Moreover, the government is also offering the
evidence to rebut the defense portrayals of [the defendant] as
having no destructive objective and posing no real threat, a
purpose expressly approved by the Second Circuit in Khalil. 214
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F.3d at 122. As in Khalil, the evidence is directly relevant to

the paramount issue of dispute at the trial -- defendant Kadir's
intent and state of mind. Id.
With respect to the third inquiry under Rule 404(b),
the court must apply Federal Rule of Evidence 403 to determine
if the probative value of a particular piece of evidence is
substantially outweighed by its potential for unfair prejudice.
Court Order, June 3, 2010, Docket Number 271, at 4. As set forth
above, the evidence has significant probative value on the key
issue at the trial. Moreover, any potential for prejudice is
mitigated by the fact that the bad act in question -- possession
of firearms -- is a far less serious crime than those for which
[the defendant] is being tried. Court Order, June 3, 2010,
Docket Number 271, at 7 (citing United States v. Williams, 205
F.3d 23, 34 (2d Cir. 2000). Indeed, in Khalil, the Second
Circuit rejected a Rule 403 challenge to photographs depicting
the defendants possession of firearms where the defendant was on
trial for terrorism offenses, even where the defendant was
assuming a posture of martyrdom. Khalil, 214 F.3d at 122.
With respect to the fourth inquiry, the government
continues to assert that the evidence is directly admissible
without resort to Rule 404(b) and thus no limiting instruction is
necessary. However, should the Court deem Rule 404(b)
applicable, the government would not object to a limiting
instruction that the evidence could only be considered to
demonstrate the defendants intent and state of mind during the
course of the charged offenses.1
III.

Conclusion

For the reasons set forth above, the government

respectfully submits that the defendants motion should be
denied. The government further submits that the photographs
seized from the defendants possession at the time of his arrest

We note that the defendant has indicated his intent to

testify and call a character witness, see supra. Should the
defendant offer such evidence, a limiting instruction under Rule
404(b) would be unnecessary because the photographs would be
admissible evidence of character, pursuant to Rule 404(a)(1) of
the Federal Rules of Evidence.
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during his trip to Iran in furtherance of the conspiracy should

be admitted into evidence.
Respectfully submitted,
LORETTA E. LYNCH
United States Attorney
By:

cc:

/s/ Marshall L. Miller

Marshall L. Miller
Jason A. Jones
Berit W. Berger
Zainab Ahmad
Assistant U.S. Attorneys
(718) 254-6421/7553/6134/6522

Kafahni Nkrumah, Esq. (via ECF and email)

Toni Messina, Esq. (via ECF and email)
Mildred Whalen, Esq. (via ECF)
Len Kamdang, Esq. (via ECF)