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Pursuant to Title 18, United States Code, Section 3500, thegovernment provided reports and other material for the witnesseswho seized the photographs on May 3, 2010. The government againprovided the defendant with the photographs, marked as governmentexhibits, substantially in advance of opening statements and thetaking of trial testimony.

On June 30, 2010, counsel for defendant Abdul Kadirdelivered an opening statement in which she argued that Kadir wasan upstanding citizen in Guyana and a hardworking communityleader who never had any interest in the plot to attack JFKAirport. (Trial Transcript ("T") 2385). During cross-examination, counsel has repeatedly sought to portray Kadir asmorally opposed to offensive violent activity. (T 3225, 3268,3270-71, 3272-73, 3286). The defendant has indicated that heintends to testify, (T 3254), and has indicated his intent tocall at least one character witness at the trial. See ProposedJury Instructions for defendant Kadir, filed June 26, 2010,Docket Number 325, at 18-19 (requesting jury instruction ontestimony of character witness).

On July 13, 2010, the defendant filed a motion topreclude the admission of the attached photographs.

II. The Photographs Seized from the Defendant’s Possessionat the Time of His Arrest En Route to Iran AreAdmissible

The government seeks to introduce into evidence theenclosed photographs, which were seized from defendant Kadir'spossession at the time of his arrest, as proof of Kadir's intentand state of mind as he traveled to Iran in furtherance of theconspiracy to attack John F. Kennedy airport.

As in all criminal cases, the government bears theburden of proving the defendant’s mens rea in connection with thecharged crimes. In the instant case, during recordedconversations that were admitted into evidence as GovernmentExhibits 224 and 225, Kareem Ibrahim, a co-conspirator andlongtime friend of defendant Kadir, indicated that the next stepin the plot to attack John F. Kennedy International Airportinvolved presenting the plot to contacts in Iran. Just eightdays later, Kadir was arrested in Trinidad en route to Iran inpossession of the enclosed photographs, which depict Kadir andfamily 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 Kadir’s intent and state of mindduring his trip to Iran in furtherance of the charged conspiracy.

The probative value of the photographs is enhancedsignificantly by the defendant’s claims during counsel’s openingstatement and during cross-examination. Defendant Kadir hasadvanced the position that he “never had any interest in thisplot” and that his indictment was the result of the government's“agenda.” (Tr. 2385). In her opening statement, counsel forKadir focused the jury’s attention on the defendant’s characterin claiming that he did not have the requisite intent to committhe crimes charged. (T 2385-2387). Defense counsel argued tothe 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, aShiite mosque, in Guyana.” (Tr. 2385, 2387). Counsel alsocharacterized Kadir’s travels to Iran as purely religious andinnocent, as Shiite Muslims go to Iran just “as Catholics go tothe Vatican,” and just because he “sent his children to study inIran, in university where they teach things like ethics andforeign languages” that “does not make him a bad person.” (Tr.2385-86). During cross-examination of the government’switnesses, counsel for defendant Kadir repeatedly asserted thatKadir did not condone aggression, nor even defensive violence inGuyana, as, according to defense counsel, institutions in need ofdefense had not been built. (T 3225, 3268, 3270-71, 3272-73,3286). The photographs themselves directly rebut the defendant’sclaims regarding his purportedly peaceful character. Moreover,the defendant’s decision to carry those photographs with him toIran on his trip to present the plot to attack JFK Airport tointerested parties clearly demonstrates the seriousness of hisintent to further the goals of the conspiracy despite his claimsto the contrary.

In United States v. Khalil, 214 F.3d 111 (2d Cir.2000), the Second Circuit upheld the admission of similarphotographic evidence in a factual scenario nearly identical tothat presented in this case. In Khalil, where the defendant wascharged with conspiring and threatening to use a weapon of massdestruction, the government introduced in its case-in-chiefphotographs of the defendant brandishing a shotgun while wearingapparel associated with violent militants. Id. at 116. Then-United States District Judge Reena Raggi admitted the photographsas evidence of the defendant’s state of mind and to rebut defensearguments that the defendant lacked intent to commit the crime,as he claimed that he had no destructive objective and merelyintended to obtain a reward from the government by pretending toprevent a terrorist attack. Id. at 122. The Second Circuit held

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that Judge Raggi’s decision to admit the photographs was wellwithin the Court’s discretion and rejected the defendant’s claimof error. Id. The Second Circuit reasoned that “the photographswere 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 thedefendant and his family members brandishing firearms, in amanner associated with militancy. Similarly, as in Khalil, thedefense has argued that the defendant lacked intent to commit thecrime, had no interest in violence and merely intended to obtainmoney by pretending to be involved in a terrorist plot. ApplyingKhalil to the facts at hand, the Court should admit the enclosedphotographs into evidence.

The defendant argues that admission of the photographsruns afoul of Rule 404(b) of the Federal Rules of Evidence (“Rule404(b)”). He is incorrect. First, “[e]vidence of unchargedcriminal activity is not considered other crimes evidence . . .if it arose out of the same transaction or series of transactionsas the charged offense, if it is inextricably intertwined withthe evidence regarding the charged offense, or if it is necessaryto complete the story of the crime on trial.” Court Order, June3, 2010, Docket Number 271, at 3 (internal quotation omitted). As set forth above, the photographs are direct proof of anelement of the charged offense, and arose out of the same seriesof transactions as the charged offenses, as they were seized fromthe defendant's possession as he traveled to Iran in furtheranceof the conspiracy to attack John F. Kennedy InternationalAirport.

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 properpurpose; (2) it [is] relevant to a disputed trial issue; (3) itsprobative value is [not] substantially outweighed by its possible[unfair] prejudice; and (4) the trial court administer[s] aproper limiting instruction.” Id. (internal quotation omitted). As set forth above, the government is offering the evidence forthe proper purpose of proving the defendant's intent. See Fed.R. Evid. 404(b) (including “intent” in non-exhaustive list ofproper purposes). Moreover, the government is also offering theevidence to “rebut the defense portrayals of [the defendant] ashaving no destructive objective and posing no real threat,” apurpose expressly approved by the Second Circuit in Khalil. 214

1 We note that the defendant has indicated his intent totestify and call a character witness, see supra. Should thedefendant offer such evidence, a limiting instruction under Rule404(b) would be unnecessary because the photographs would beadmissible evidence of character, pursuant to Rule 404(a)(1) ofthe Federal Rules of Evidence.

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F.3d at 122. As in Khalil, the evidence is directly relevant tothe paramount issue of dispute at the trial -- defendant Kadir'sintent 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 determineif the probative value of a particular piece of evidence issubstantially outweighed by its potential for unfair prejudice.” Court Order, June 3, 2010, Docket Number 271, at 4. As set forthabove, the evidence has significant probative value on the keyissue at the trial. Moreover, any potential for prejudice ismitigated by the fact that the bad act in question -- possessionof 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, 205F.3d 23, 34 (2d Cir. 2000). Indeed, in Khalil, the SecondCircuit rejected a Rule 403 challenge to photographs depictingthe defendant’s possession of firearms where the defendant was ontrial 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 governmentcontinues to assert that the evidence is directly admissiblewithout resort to Rule 404(b) and thus no limiting instruction isnecessary. However, should the Court deem Rule 404(b)applicable, the government would not object to a limitinginstruction that the evidence could only be considered todemonstrate the defendant’s intent and state of mind during thecourse of the charged offenses.1

III. Conclusion

For the reasons set forth above, the governmentrespectfully submits that the defendant’s motion should bedenied. The government further submits that the photographsseized from the defendant’s possession at the time of his arrest

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during his trip to Iran in furtherance of the conspiracy shouldbe admitted into evidence.

Respectfully submitted,

LORETTA E. LYNCHUnited States Attorney

By: /s/ Marshall L. Miller Marshall L. MillerJason A. JonesBerit W. BergerZainab AhmadAssistant U.S. Attorneys(718) 254-6421/7553/6134/6522

cc: Kafahni Nkrumah, Esq. (via ECF and email)Toni Messina, Esq. (via ECF and email)Mildred Whalen, Esq. (via ECF)Len Kamdang, Esq. (via ECF)