United States v. Al Farekh, No. 18-943 (2d Cir. 2020)
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The Second Circuit affirmed defendant's convictions for using explosives, conspiring to murder U.S. nationals, conspiring to use a weapon of mass destruction, conspiring to bomb a U.S. government facility, and providing material support to terrorists.
The court held that a district court does not abuse its discretion where it denies a defense counsel with the appropriate security clearance access to motions filed by the Government ex parte pursuant to section 4 of the Classified Information Procedures Act (CIPA); a custodial interrogation that takes place overseas over a period of several weeks and involves the display of hundreds of photographs as part of a foreign country's counterterrorism investigation is not unduly suggestive, thereby rendering inadmissible an out-of-court photo identification of the
defendant; and a district court does not abuse its discretion when it limits the cross-examination of a fingerprint examiner to preclude references to a fingerprint misidentification in a wholly unrelated case. Under the circumstances in this case, the court held that the district court did not err in adjudicating the Government's CIPA motions ex parte and in camera, admitting the out-of-court photo identification of defendant, and limiting the cross-examination of the Government's fingerprint examiner.
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