Un-indicted Co-conspirator(s): An Unnecessary Stigma
The Right Wing and the Council on American-Islamic Relations; No Due Process for the Unindicted
What exactly is a un-indicted co-conspirator?
Attorney Peter R. Rient defined the term as any person the Government alleges “agreed with others to violate the law but who is not charged with an offense and who, consequently, will not be tried or sentenced for his criminal conduct.” 1/
While the “un-indicted co-conspirator” designation may not have immediate legal consequences, it definitely has long term social consequences. As Ira P. Robbins, Bernard T. Welsh Scholar and Professor of Law and Justice, has written: “Although a criminal defendant is presumed innocent until proven guilty and has a Sixth Amendment right to a speedy trial, these procedural protections do little to shield an individual who is identified as an unindicted co-conspirator. Because trials focus on the guilt or innocence of the indicted individuals, the practice of naming an individual as an unindicted co-conspirator in effect accuses the person of a crime without providing him or her with a forum for seeking vindication. Thus, the practice routinely results in injury to their reputations, lost employment opportunities, and a practical inability to run for public office.” 2/
Three decades earlier the Fifth Circuit Court of Appeals in United States v. Briggs came to much the same conclusion: “”[t]the grand jury that returns an indictment naming a person as an unindicted conspirator does not perform its shield function [protecting the innocent] but does exactly the reverse. If the charges are baseless, the named person should not be subjected to a public branding, and if supported by probable cause, he should not be denied a forum.” 3/
That’s precisely what happened to some of the nearly 300 individuals or entities named as un-indicted co-conspirators in the “Holy Land Foundation terrorism case” tried in Dallas last year. One of the groups named as an un-indicted co-conspirator was the Council on American-Islamic Relations (CAIR). This group found itself in the Government’s cross hairs after one of the Holy Land leaders, Ghassam Elashi, who founded the Texas chapter of CAIR and chaired on the Holy Land Foundation, was indicted on terrorism related charges.
There was absolutely no evidence that CAIR aided or abetted terrorism, or lent any kind of moral or financial assistance to any identified terrorist group. But because Elashi had been charged—and subsequently convicted and sentenced to seven years in prison—with having financial ties to a high-ranking Hamas terrorist and exporting computers to countries that supposedly backed terrorism, the Government concluded CAIR had to be supporters of terrorism, or as House Speaker Nancy Polosi labeled the group in March 2007, “terrorist apologists.”
CAIR continues to assert it is a mainstream group whose aim is “to enhance the understanding of Islam, encourage dialogue, protect civil liberties, empower American Muslims and build coalitions that promote justice and mutual understanding.” These admirable social objectives prompted California’s leading Democratic Senator Barbara Boxer to bestow an “award” upon a local CAIR official in her district. But as soon as the group was named “un-indicted co-conspirators” in the Holy Land case, the senator withdrew the award.
Right wing political groups and conservative talk show hosts also took up the drum beat of unfounded attacks on CAIR. These forces pointed to what they called CAIR’s position of being “soft on terrorism.” They charged that while the group offered what the New York Sun called “generic denunciations of terrorism,” it refused to “condemn by name specific Islamic terrorist groups such as Hamas or Hezobollah.” They also pointed out that a number of CAIR officials have been, as the Sun reported, “convicted or deported after being charged with fraud, embargo violations, or aiding terrorist training.”
The right to live in this country as individuals, or to congregate as groups, does not require that we offer public condemnation of groups designated by the Government as “terrorist” organizations, especially when those designations were made by an administration as lawless as that of George W. Bush, Jr. CAIR has never offered what can reasonably be described as a justification for terrorists or terrorism in general as suggested by Rep. Polosi. If a public official wants to engage in childish behavior as Sen. Boxer did by saying “gimme back my award,” that’s one thing, but to level an unsubstantiated accusation that a particular group is “apologists” for terrorism is irresponsible and despicable.
The social impact of being named un-indicted co-conspirators in the Holy Land case has been significant on CAIR. The unsubstantiated indictment reduced the group’s membership and donations. In court pleadings filed before the Holy Land convictions were returned last year, CAIR said that its donations had “dwindled well below [its] monthly budget.” The group charged that the Government had implicated it in “criminal activity” through nothing more than “pure guilt by association.” CAIR said this governmental misconduct undercut its “central mission to protect Muslim-Americans’ civil rights and foster an atmosphere of acceptance in American society … The American public and the media which CAIR uses to deliver its message will no longer believe in the veracity of such message because CAIR will be perceived as a terrorist front organization.”
And that is exactly what happened as evidenced by Rep. Pelosi’s public comments about the group. The tragic thing about the naming of CAIR as un-indicted co-conspirators in the Holy Land case is that it violated U.S. Justice Department guidelines. Guideline 9-11.130, United States Attorney’s Manual, states that “[t]he practice of naming individuals as unindicted co-conspirators in an indictment charging a criminal conspiracy has been severely criticized in United States v. Briggs …”
The Guideline further provides that ordinarily “there is no need to name a person as an unindicted co-conspirator in an indictment in order to fulfill any legitimate interest or duty. For purposes of indictment itself, it is sufficient, for example, to allege that the defendant conspired with ‘another person or persons known.’ The identity of the person can be supplied, upon request, in a bill of particulars. With respect to the trial, the person’s identity and status as a co-conspirator can be established, for evidentiary purposes, through the introduction of proof sufficient to invoke the co-conspirator hearsay exception without subjecting the person to the burden of a formal accusation by a grand jury.”
Finally, the Guideline cautions that “in the absence of some significant justification, federal prosecutors should not identify unindicted co-conspirators in conspiracy indictments.”
What are the reasons for naming un-indicted co-conspirators? Professor Robbins offered the following nine reasons prosecutors generally use to engage in this highly questionable practice:
1. To benefit from the hearsay rule that allows statements made by co-conspirators to be introduced at trial.
2. The un-indicted co-conspirator may have already been charged in another case.
3. The Government may have plans to try un-indicted co-conspirators before a military tribunal.
4. Because of serious constitutional questions, the Government may name a sitting President as an un-indicted co-conspirator rather than seek a formal indictment.
5. The un-indicted co-conspirator may be dead.
6. The un-indicted co-conspirator refused to cooperate with a Government investigation.
7. The statute of limitations has expired on the crimes allegedly committed by un-indicted co-conspirator.
8. To punish the un-indicted co-conspirator for exercising his Fifth Amendment right not to testify before a federal grand jury.
9. Government wants to stigmatize disfavored groups or persons. 4/
Professor Robbins made it clear that none of these reasons are “weighty enough to justify the assault on the due process rights of the named individual, and several of the reasons plainly constitute abuses of prosecutorial power.” 5/
A credible argument can certainly be made that the Government abused its prosecutorial powers by naming CAIR as un-indicted co-conspirators in the Holy Land case and did so for no other reason than to stigmatize the group in the eyes of the American public as being associated with “terrorism.”
We do not support terrorism and have no truck for individuals or groups that do. What we do support is “due process of law”—a constitutional concept that condemns any practice by the Government that convicts individuals or groups with no more evidence than “guilt by association.” Our Government once protected lynch mobs that killed people because of the “color of their skin” and our Supreme Court once refused to recognize black people as “human beings.”
This tragic history cannot be minimized when one realizes that the George W. Bush administration supported kidnapping people off the street in foreign countries, placing these suspected “terrorists” in secret prisons, and torturing them until they confessed to what Government interrogators wanted to hear. That’s why it is difficult for us to accept with any reasonable degree of confidence those designations made by federal prosecutors, poisoned by the gung ho, never mind the Constitution, philosophy of the Bush administration, naming individuals and groups as “un-indicted” terrorists or terrorism sympathizers without affording them a forum to defend against the charges.
1/ Impeachment or Indictment: Is a Sitting President Subject to the Compulsory Process?: Hearing Before the Subcom. on the Constitution, Federalism, and Prop. Rights of the Sen. Comm. On the Judiciary, 105 Cong. 225 (1998) [Peter F. Rient, partner in Gainer, Rient and Hotis].
2/ Robbins, Ira P., Guilty Without Charge: Assessing The Due Process Rights of Unindicted Co-Conspirators, Federal Courts Law Review – 2004 Fed. Cts. L. Rev. 1.
3/ 514 F.2d 794, 803 (5th Cir. 1975).
4/ Id., Robbins.
5/ Id., Robbins.
ABOUT THE AUTHOR: John Floyd and Paralegal Billy Sinclair
Houston Criminal Attorney John Floyd has been rated as among the best and brightest attorneys practicing criminal law and has been recognized as one of Houston’s Top Lawyers for the People (2008,2009), Top Lawyers: Criminal Defense (2008) and has earned a “Superb” rating, scoring 10/10, from AVVO. He has appeared on national television and radio programs as an expert on criminal law related issues and has been quoted in newspapers and other news outlets throughout the country.
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