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### Filed with Classified Information Security 

### Officer CISO 

### 0,-1\**~**,r -'?,-- 

### UNITEDSTATESDlSTRICTCOURT 

## Date**~**S-/ {

### lJt /

### ,,.ld\'j FORTHEDISTRICI' OFCOLUMBIA**~** 

### UNITED STATES OF AMERICA, V, 

### MUSTAFA MUHAMMAD MUFTAH ALIMAM Defendant. CaseNo. 17-cr-00213 (CRC)



### MEMORANDUM OPINIONAND

### ORDER Mustafa Al-Imam is charged in a seventeen-count criminal indictment stemming from his alleged rnle in the September 

### 2012 attack on U.S. diplo111atic and intelligence facilities 

### in Bengbazi,

### Libya, The Government 

### moves to admit i.1110 

### evidence at 

### trial telephone records that it 

### alleges are associated with a phone number used by the Defendant's alleged co-conspirator, Ahmed Abu Khata

### llah, who was 

### tried in 

### this Court onvirtually identical 

### charges in 

### 2017, The Government seeks admission ofthe records under federal Rule ofEvidence 803(6), the business-records exception to the prohibition on hearsay evidence. IL also moves to admit

- certification from Mohamed Ben Ayad, the CEO ofthe cell~phone carrier Libyana Telecommunications, 

### attescing to the authenticity 

### of

### the records based on the factors setforth in 18 U.S.C. 

### §3505. Al-Imam opposes both requests. The Government ir1oved to admit these samephone records into evidence in advance of Abu Khatallah'strial. At that time, the Courtheld a hearing regarding the Government's acquisition ofthe records and Mr. 

### Ayad's certification. Based 

### on. its factual findings, the Court concluded that the Government h~d met its burden to show by El 

### preponderance ofthe evidence that the records were admissible. Here, Al~Imam renews ObJections to the introduction ofthe records made by 

### Abu Khatallab a11d identifies perceived flaws in the Courr's prior assessment.
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For rhe reasons that follow, the Courtwill grant the Government's motion. Boththe telephone 

### records and Ayad's 

### §

### 3505 certification 

### are admissible al 

### trial.

I. Factual Background 

### The Court draws the following factual background 

### from irs Abu

### Khatallah decision, based onthe hearing it held on Septembel' 14, 

### 2017. See United States v. Abu

### Khatallah, 278 F. Supp. 3d 1 (D.D.C.2017). 1 Al"lmam has 

### not contested or othel'wise soughtto revisit these factual findings. Thetelephone records at issue 

### were first obtained



### - in October 2012. Hr'gTr. 19:20-24 (Sept. 

### 14, 2017); Gov. Ex. l 101.'-



# ..

roceedings, 

### the Court admitted Govemrnenl Exhibit 

### 1101,_ for purposesofrhr: hearing only. Hr'gT~ 

### 14, 2017).

-1 In the priorproceedings, Abu Khatallah pointed to some evidence suggesting the telephone

### number was

### not his, such as the fact that someone else is listed as the number's subscriber. See, e.g., Hr'g Tr. 119:4-7 (Sept. 14, 2017). The Court concluded that sufficient evidence existed to infer the phone numberwas used 

### by Abu 

### Khatallah during the releva.nCiime period, including that the listed subscriberwas his ~rather, the testimony that Libyan lawdid not 2 REDACTED fCLEARED FOR PUBLIC RELEASERFDACTED/CLEARED FORPUBLIC RELEASE

# ■

# ■

preventphones from being subscribed in another's name, and statements allegedly made to FBI Agent Juslin O'Donnell indicating Abu Khatallah used this number at the time in question. See id. 20:20-24, 25:20-26:14, 45:8-16, 81: 15-20, 86:22-87:1, 88:7-12, 88:24--25 (Sept. 14, 2017). Al-Imam has not rene\:ved Abu Khatallab's arguments in this regard. 3 REDACTED/CLEARED FOR PUBLIC RELEASEREDACTED/CLEARED FOR PUBLIC RELEASE

4 REDACTED/ CLEARED FOR PUBLIC RELEASEREDACTED ICLEARED FOR PUBLIC RELEASE 

# -···

Ill

The Federal Bureau ofinvestigacion ("FBI"), which was investigating the Benghazi attacks, obtained a copy ofthese telephone records in Ocrober 2012. Hr'gTr. 70: 13-15, 91: 14- 18 (Sept. 14, 2017). 

### In January 2017, FBI 

### Agenl Justin O'Donnell contacted Mohamed Ben Ayad, the CEO and 

### co-founder ofLlbyana, 

### seeking to authenticate the records. Id. 71 :16-20, 72:5, 73:21-23. Priorto meeting with him, Agent O'Donnell and other agents confirmed Ayad's identity as the 

### Libyana CEO through open somces and 

### publicly available information. Id. 72: 10-17, 98: 17-22. Agent O'Donnell and FBI Agem Mike Clarke metwith Ayad outside the United States on January 21, 2017. Id. 72:2-5. Ar the meeting, O'Donnell and Clarke introduced themselves as FBI agents investigating the September2012 attack onthe U.S. Mission and Annex in Benghazi. Id. 72:20-24, 7_3:14-16. Ayad agreed to assistthe two agents in 

### cheir investigation with respect to the telephone records. 

### Ict. 7J: 18. 

### During the meeting, Agent O'Donnell and Agent C]arke showed Ayad a hard copy ofthe telephon.e l'ecords. Id. 74:6-10. Ayad told the agents that Libyana maintains call data records as
a matter ofgeneral practice for reasons such as 

### acconncability and billing and that he was
5 REDACTED ICLEARED FORPUBLIC RELEASEREDACTED/CLEARED FOR PUBLIC RELEASE 

### familiar with Libyana's business records practices. Id. 73:24-74:3, 85:17-86:1, 102:4-5. He then 

### reviewed the records thatthe agents 

### broughl with 

### them for several 

### minutes. Id. 74:12-13. 

### After his review, he told the agents chatthe records were call data records from Libyana, explaining that the format 

### ofthe 

### records and yhe "profile page" that 

### listed the information about the subscriber were unique to Libyana. Id. 74: 17-19. Ayad 

### explained thathe had helped design 

### the format for the profile page with the subscriber 

### information and recognized it. 

### Id. 76: 1-3. In addition, 

### Ayad 

### told the agents that 

### two particular

### telephone number 

### prefixes-092 and 

### 094-
were used 

### solely for numbers serviced 

### by Libyana and the numberhere had a 092 prefix. Id. 7



### 5:2-17. The agents then asked Ayad 

### to sign a certification form atlesting to the atlthen1icity of the records and walked him through the form line-by-line to confirm his understanding before he signed it. 

### Id. 76:7-11, 77:4-78:2. They thanked Ayad for his assistance and asked 

### ifhe might also be able to reproduce the telephone records from the Libyana databases. Id. 79:7-9. Following the mee1ing, Ayad em.ailed Agent O'Donnell additional phone i-ecol'ds for the
same 

### telephone number. this 

### time covering February 21, 

### 2014 thro-ugh April 28, 2014. Id. 80:3- 9, 82:1-11.5 

### Agent O'Donnell replied to Ayad Vta 

### e~nail, thanking him 

### fonhe records but clarifying that the Governmentwas inlerested in telephone records 

### for July 

### to December 

### 2012, not February 

### co April 2014. Id. 

### 82:16-23. Ayf!d 

### responded 

### thal 

### he could not access those records presently 

### becatise Libyana's 

### electronic records fron12012 had been corrupted, though technicians were working on recovei-ing the data. Id
.. 83:1-3, 105:1-2, 107:4-6, 126:7-19.

5 

### ln the prior proceedings, defense counsel argued that these laterrecords were suspect because they reflect calls made 

### after Abu 

### Khalallah was in C\.1stody. 

### I-fr'g Tr. 153:16-154:2 {Sept. 14, 2017). However, the additional records produced for the specific number associated with

### Abu Khatallah covered February

### 21, 2014 through April 

### 28, 2014. before Abu Khatallah was captured in June 

### 2014. Id.82:6-11. 

### Ayad also provided records that included calls in 2016 for or her numbers 

### that had the sa1ne subscriber-Abu 

### Kl1atallah's 

### broth.er-listed. Id. 80:l

### 0-17. As such, the record before 

### the Court does not suggest there were calls made from the number associated withAbu Khatallah after his capture. 6 RED.ACTED ICl. !:f,,RED FOR PU8UC RELFASF.REDACTED ICLEARED FOR PUBUC REU:ASE Agent O'Donnell and 

### Ayad spoke again by phone in 

### July 2017, and 

### Ayad confirmed that hewas 

### slill unable to access 

### the requested 

### darn from 2012. Id. 107:7-10, 112:3-10. OnJuly 12, 2017, Agent O'Donnell sent an·electronic version ofthe telephone recordsto Ayad and asked him to analyze them once more and compare them to existing phonerecords in lheLibyanadatabases. Id. 83:6-13, 108:10-14, 109:23-110:4, 110:18-19. Ayaddidso,and confirmed once again that the telephone records were Libyana call daia records. Id. 83: 15, 84;10-17, 84:25-85:1. He also provided anothercerLif.ication as to the authenticity ofthe records, signed on 

### July 18, 2017. ld. 83:16, 84:4. This 

### certificotion, which was made 1,mder penalty ofperjury ·ofthe laws of

### Libya, attested 

### that the records "were made at or 

### near the time 

### ofthe 

### occurrence 

### ofrhe matters set forth therein by (orfrom information 

### Lrnnsmilled by) a person with 

### knowledge of

### those mattet·s," "were kept in the course ofregularly conducted business activity," "were made by lhe said business activity as a regularpractice,', 

### and 

### "ifnot original records, are duplicates oforiginal records." Mol. in Limineto Introduce Phone Records 

### (''MIL") Ex. E, ECF No. 78-5. Agent O'Donnell 

### also attempted to confirm the 

### authenticicy ofthe records 

### by verifying that they included calls 

### that other evidence indicated had occurred 

### in lhal 

### tilT\e period. 

### Hr'gTr. 86:2---6 (Sept. 14, 2017). For 

### instance, during interviews with Abu Khatallah following his 

### capture in June 2014, Abu Khatallah apparently told 

### Agent O'Donnell 

### that he had a phone call with 

### anumber ending in 8891 on the evening ofthe attacks, 

### September 11, 2012, around 8:30 p.rn. Id. 86:9-87:

### 1. Agent O'Donnell examined 

### the records and found an entry documenting a cal] wirh a numberending in 8891 on September 11, 2012 at 8:39 p.m. Id. 87:2-6. 

### In addition, Abt, Khata1\ah apparently told Agent O'Donnell about another specific call that he made to a phone number ending in 1530 on September ll, 

### 2012-which the

### recipienl of

### 1he call also


### 7 ?2DACT::D ICU:i\PED FOR PUBUC RELEASEREDACTED/ CLEARED FOR PUBUC RELEASE
verified to Agent O'Dorinell occurred. Id. 88:7-89:4. Agenl O'Donnell found an entry in the telephone records docurnenting this call too. Id. 89:7-9. During the hearing, Agent O'Donnell testified that there were otherexamples oftelephone calls thathe knew occurred and had verified appeared on the records, though he could not recall any specific calls during the hearing. Id. 89:18-22, 122:8-22, 126:20-127:4. The Court adds the following to its Abu Khatallah findings: Al-Imam told FBI agents that he did not speak to Abu Khata

### Uah after leaving an A.nsar 

### Al-Sharia camp on the evening of the attacks. SeeReply Supp. MIL Ex. F, ECFNo. 115-1, at 3. This correspondswith the records, whicb show several calls between the number Al-Imam used,~ id. at 1, and Abt1 Khatal1ah's purported number, none of\:vhich occurred after 10:45 p.rn. SeeMIL Ex.Cat

### 3433- 34.



### TI. Leg~l Standard UndertheFederal Rules ofEvidence, the Court "mustdecide 

### any preliminal'y question about whether
... evidence is admissible." Fed. R. Evid. 104(a). 

### In considering admissibility, the Court "is not bound 

### by evidencerules, except those onprivilege." Id. The proponenlof evidence must show

### by a preponderance ofthe evidence that any necessa1·y prerequisites for 

### admission have been met. Bourjaily v. United Srates, 483 U.S. 175, 176 (1987). TheFederal Rules ofEvidence permit admission ofa "record ofao act, event, condition, opinion ordiagnosis" as a business record excepted from theprohibition onhearsay if: (1) Lhe record was made at ornear the time by-orfrom information transmitted bysomeone with knowledge; (2) therecord was kept in the comse ofa regularly conducted activity ofa business; and (3) making the record was a regularpractice ofthat activity.

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### Fed. R. Evid. 803(6). These conditions must be shown "by 

### the testimony ofthe custodian or another qualified witness, orby acertification that compJies 

### with Rule 902(11) or (12) or with a statute permitting certification." Id. Finally, the record is only 

### ad11lissible if

### the opponent to admission "does not show that the source ofinformation orthe m.ethod or circ\unstances of pi-eparationjndicate a lack oftrustworthiness." 

### Id. Neltlwr ofthe certification options in Rule 902(11) or (12) apply here because the Government is seekingto admit foreign records in a criminal case. See Fed. R. Evid. 902(11) 

### (discussing admission of

### domestic records); id. 902(12) (discussing admission offoreign records in a 

### civil case). Instead, the Government relies on 18 U.S.C 

### §3505., which

### pmvides that "a foreign record 

### ofa regularly conducted 

### activity, or

### a copy ofsuch record, shall not be excluded


### as evidence by 

### the hearsay rule" in acriminal case if

### there is a "foreign 

### certification" attesting that: (I) such

### record was ir1ade, 

### at ornear the time ofthe occurrence ofthe matters setforth, br(or 

### from information transmiued by) aperson with knowledge ofthose matters; (2) schrecord was kept in the course ofa

### regularly conducted business activity; (3) 

## tll e business activity made such a record as a regt1lar 

### praclice~ and 

### (4) 

### ifsuch record 

### is nol the original, such record is adoplicate ofthe original. 18 U.S.C. 

### §**~**

### 505(a)(1 ). A "foreign certification" is defined as "awritten declaration made and I 

### signed in a ~oreign country by the custodian ofa 

### foreigi1 record ofregularly 

### conducted activity or anotl'.erqualified person that, 

### iffalsely made, would 

### subject the maker to crirninal penalty 

### under the laws ofthat country." Id. §3505(c)(2). Aforeign record is admissible with avaUd foreign ce1·tificaLion that attests to 

### the relevant requirements 

### "unless Lbe source ofinformation or the method or c·rcumsranccs

# orpreparation indic~1e lack oftrustworthiness."**~** 

### § 3505(a)(I).

9 REDACTED /CLEARED FOR PUBLIC RELEASEREDACTED ICLEARED FOR PUBUC RELEASE The UYovernment argt1es that the telephone records are admissible underRule 803(6) because the oreigncertification signed 

### by Ayad meets the requirements of§ 3505, see Fed. R. Evid. 803(6) D) (permitting therequi.rem.ents to be shown 

### by a certification that complies with a scarnte perm'tting certification), and because the testimony ofthe witnesses atthe September 14, 2017 hearin , along with the certification, show the requirements ofthe Rule are met. Hr'gTr. 137: 

### 11-24 ( ept. 

### 14, 2017). The 

### Coun agrees and will admit the recordsthrough an appropriate witness, alm g with Ayad'scertification.



### III. 

### A. The ourtwill first 

### brietly recap itsAbu Khatallah holding before considering

### AlImam 1s con ntions thal it erred. Abu Khatallah held that Ayad's certification-the same certification atissue here-met the requirements of§ 3505(a)(l). 278 F. Su_pp. 3d at 7. That certification signed under thepenalty of

### pe1j1.1ry ofthe laws of

### Libya, see 18 U.S.C. 

### §3505(c), 

### attests that: 1) 

### the 

### 1·ecords were made at ornear the 

### time ofthe 

### occurrence ofthe 

### matters set forth; (2) 

### th1y were kept in tbe comse ofa regularly conducted business activity; (3) the business activity ma

# ib such records as a regularpractice; and (4) 

### if

### the records were 

### not the original, 

### they
were a dupli ate ofthe original. SeeMIL Ex. E, ECfNo. 78-5. Afte ·considering lhe certjfication and the full factual record, the Court concludedthatthe certification met rhe requirements of§ 3505 and that the Government met its

### pr;mcr fctcie burden under Rule 03(6). Abu Khatallah, 278 F. Supp. 3d at 7. Then, the Court consideredwhether "the source r the method or circumstance ofpreparation" oftherecords "indicate[d] a lack of trustword1l ess,'' 18 U.S.C. § 3S0S(a)(l), and concluded they did not. At this step ofthe analysis, th burden was on the defendant, and the Court explained that ''the record is silent as to


### lO REDACTED ICLEARED FOR PUBLIC RELEASE

# I

any indicatio 1

### oftbe alteration ofthe records
... and supports the conclusion

### charthe records obtained wel Libyana call records." Abu Khatallah, 278 

### f. Supp. 3d at 8. 

### In ho dingthatAyad's certification satisfied 

### §3505, the Courtconsidered the requirement that the declaration be made by

### eithera "custodian ofa foreign record
... or another ! 

### qi1alified 

### per on." 18 U.S.C. 

### §3505(c)(2); see Abu Khatallah, 278 F. Supp. 3d at 

### 6-7. The Courtheld t 

### at Ayad was "anotherqualified person" based on D.C. Circuit precedent interpreting equalifications ofwitnesses testifying pmsnantto Rule 803(6) and the certification ·eq\1irernents ofRule 902(1 l). Abu Khatallah, 278 F. Supp. 3d at 6-7. Specifically, the Court

# exf lained that a qualified witness "need nothave personalknowledge ofthe actual creation oftl e document,"jd_ at 

### 6 (quoting Unit.9.9...$tates v. Adefehinti, 510 F.3d 319,325 (D.C. Cir. 2007)), ut 

### ''need only be 'familiarwith the record-keeping procedures ofthe organization," id. (quoting 

### nited States v. Baker, 458 F.3d 513, 518 (6th Cir. 2006)). Based on this precedent and 

### the full crnal 

### record illuminating the process.

### by which 

### lhe certification was 

### obtained, the Courtconclu ed that 

### Ayad was a qualified person under lhe statute, even thoughthel'e was no 

### way.fol' l1im oconduct 

### a line-by-line comparison ofthe records 

### to Libyana's 

### database or personally at 

### est to 

### the records' accuracy or how they were gathered. Id. at 7 (collecting cases). Al-la am spies aproblem with this holding. He argues that the Court followed precedent regarding th first three elements of§ 3505(a)(1 )-thatthe records were kept in the regular cot1rse ofbu iness as part ofthe business's regularpractice and were made at ornear the time of the relevant 

### vent-and errnneously applied it to the fourth element: that

### the records, ifnot original, wer aduplicate ofthe original. 

### In other words, Al"Imam contet1ds lhat, whatever qualification Ayad had to certify Libyana's record-keeping

### practices, he had no way 

### to know that these re ords were duplicates ofactual Libym1a 

### records crealed by

### those practices. More
11REDACTED/ CLEARED FOR PUBLIC RELEASE 

### specifically, because Ayad did not have first-hand knowledge ofhow the records were acquired
orwhether they were doctored in the imedn1) he could not attest that they were duplicates. Section 3505'srequfren-1enr that a witness attest ro arecord being a duplicate was not designed to be as

### rigid a threshold as Al-Imam suggests. Congress enacted§ 3505 as a "simple, inexpensive substimtefor the cumbersome and expensive procedures,i oflive-wit11ess testimony under Rule 803(6). H.R. Rep. 98-907) ar 3 (t984); see also 

### Uniced Srates v. Ross. 33 F.3d 1507) 1515 (lltb Cit-. 1994); Unired Stales v. 

### Strickland, 935 F.2d 

### 822,830 (7th Cir. 

### 1991). Reflecting this 

### purpose, several circuitcourts have explained that §

### 3505 ''was not intended to add technical roadblocks to the admission offoreign records, but, rather) to streamline the admission ofsuch records." United States v. 

### Jawara. 474 F.3d 565, 584 (9th Cir. 2007) (quoting Strickland, 935 

### F.2d at 831); see also 

### Uniled States v. Garcia Abrego, 141 F.Jd 142> 178 (5th Cfr, 

### 1998). Consistentwith th.is 

### purpose, §

### 3505 does "not 

### change the benchmark 

### question in this and every situation involviug the admission ofdocumentary evidence: do the documents bearthe indicia of reliability?" Jawara, 474 F.3d at 479 

### (quoting Strickland, 935 

### F.2d at 831). 

### Here, the Courthas already concluded that, based on the testimony it

### heard from 0'Donnell) the records are sufficiently reliable 

### to be admitted under Rule 803(6). 

### Al-Imam suggests that Rule 803(6) requires that a record be "known by 

### the witness to be
a direct product of

### (the] record-keeping system.'' Opp'n to 

### MIL at 3. He 

### implies that a witness 

### must either directly print orcopy the record from the busines$'S files 

### orcompare 

### it lo 

### the 

### original to ensure authenticity. ld. at 6. At the Court's 

### inotion headng, Al"Immn's counsel indicated that
a certification would be insufficient ifthe president ofa foreign company were handed a report from the company's 

### accounting department 

### and certified to its status 

### as a duplicate based onhis experience seeing similar i-eporrs. Hr'gTr. 27:IJ-28:14 

### (April 15, 2019). 

### Yel neither Rule

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### Fltl£UC RELEASEPEDACTrn rcu:-,t,Rt[l FOR PUBLIC RELEASE 803(6) nor§ 3505 dem.ands such formalism. 6 See, e.g__, Wye OakTechnology, Inc. v. Republic ofIraq, CaseNo. 

### l:l0~cv~0l l82~RCL, 2019 WL 1746326, at *J (D.D.C. Apr. 18, 2019) 

### ("Although [the witness]
... 

### did

### not find the 

### docum.ents herself, this 

### does not prech.lde 

### her from being a qualified person .... Such individuals do not have to be 

### the ones lo retrieve the records."); United States v. Marcos, Case No. SSSS 87 CR. 598 (JFK), 

### 1990 WL 37845, at *5 

### (S.D.N.Y. Mar. 27, 1990) ("Neither

### Section 3505 

### norFed R. Evid. 803(6)
... require thatrhe \ business records custodian ushering docu1uents into evidence personally 

### locate orprepare 

### all btisiness

### records in 

### the files ofthe business in order to identify them as business records."). Cf. United States v. Cban~An-Lo, 851 F.2d 547,557 (2d Cir. 1988) (upholding admission of business record duplicates where proponent witness testified that "[w]hile he had nol 

### compared the specific page ofthe duplicate with the original, he did recognize the names and signarul'es of the telephone operators and the handwriting, room numbers and printed format used on the


### Further·, Congress based §3505 on 

### Rule 803(6) and instructed courts to 

### inlerprel "the language in subsection (a)(l)(A), (B), (C), and (D)
... in the same manner as 

### the comparable language in Rule 803(6) is interpreted." H.R. Rep. 98-907, at 3 (1984). While nothing in the
6 Nor do the casesAl-Imam cites establish the proposition he advances. lt is true that in United States v. Estrella, 72 F.Jd 920 (D.C. Cir. 1995) (lb!.), the D.C. Circuit explained that a proponent ofphone records is generally an employee who is knowledgeable aboul the process of ''printing

### the data that appears in the phone bill." Id. Butthe 

### focl that a proponent witness 

### will generally know that the records came directly from a business's files is not tantamount to a requirement

### that she watch it 

### be printed. Nordoes United States v. Baker, 458 F.3d 

### 513 (6th Cir. 2006), require the 

### proponen(, as 

### Al-Imam suggests, to compare the proffered records 

### with originals in the absence ofsuch knowledge. First, while the Sixth Circuit inBakernoted that a testifying postal inspectorhad "compared photocopies of

### the documents presented at trial with actual Postal Office records to ensure that they were official records," id. at 519.the opinion does not indicate thathe compared the photocopies with the particularunderlying records-as opposed to other records to examine indicia ofauthenticity. And the post1:1l inspector in Baker testified to "his familiarity with the various details ofthe postal records," id., siinilar to Ayad's 

### exmni.nation ofindicia ofauthenticity here. 13 REDACTED/ CLEARED FOR PUBUC RELEASEREDACTED I CLEARED FOR PUBLIC RELf:ASE.



### text ofRule 803(6) mirrors §

### 3505(a)())(D)'s requirement ofcertificationthat a document is an original or 

### duplicate, the Rule does 

### require a "qualified witness" to testify; this 

### parallels§ 3505's 

### "qualified person" requirement. As the Court explained in Abu Khatallah, "qualified wjtness'' is interpreted broadly. 278 F. Supp. 3d at 6-7. Tlrns, for example, awitness is qualified to testify that a record was 

### rnade at or near the time ofan occunence based on 

### general 

### familiarity with a business's record-keeping

### procedures, even if

### rhe witness 

### knows nothing aboutthe creation of the particular record itself. See, e.g.,,, United States v. Fabnbulleh, 752 F.3d 470, 478-79 

### (D.C. Cir. 2014); see also 

### 30B Fei 

### Prac. 

### & Proc. Evid. §6863 (2018). Indeed, aperson is q1.1ali:fied to offer such testimony even if

### the records were created by 

### another entity. See> e.~ Adefehinti, 510 F.3d at 326. There is no reason to conclude that a 

### similarly permissive principle does not obtai11 

### when assessing a person's qualifications to attest that a record is a duplicate ofthe original. Ayad 

### helped create the format ofthe Libyana database and was familiar with how 

### it worked. Agent O'Donnell presented him 

### with documents bearing several important indicia of Libyana phone records. And Ayad was able to pull records for the 

### san.1e 

### phone number-albeit for a 

### different time period. That intimate familiarity 

### with the system, combined with indicia 

### on the records themselves, led him to 

### conclude that the records were indeed duplicates. Againstthe strong weight ofauthority that aperson is "qualified" 

### to attest to when a record was created basedon general knowledge of

### asystem and indicia on the documents themselves, the Court concludes that Ayad was qualified to cel'tify that the records were dtiplicates 

### ofLibyana's orl.gl.nal records. True, a foundational 

### witness under Rule 80J(6) 

### typically will have printed or copied the records from the business's 

### files herself. 

### But nothing in the Rule or in§ 3505 requires st1ch

14Drn,~CT!=O !CLEA.Rm FOR PUBLIC RELEASE 

### neai·~metaphysical certainly. The circumstances 

### ofthis case are no doubt unusual, if

### not extraordinary. But, at bottom, the question for the Cou1t is s[raightforward: has the Government shown, 

### by preponderance ofthe evidence, that these records are

### reliable and authentic business records? 

### In Abu Khatallah, rhe Court held thar, all told, the Governmenthad mer that burden, andAl~Imam prnvides no newreason

# to reverse course. As discussed, his argument thatAyad
was not qualified to certify all of§ 3505 requirements does not withstand scrntiny in light ofthe facts and the 

### law governfrtg business records. The Court therefore again concludes that the records are admissible. 

### B. The Certification The Government also seeks to introduce Ayad's certification. Al-Imam objects, contending

### that its admission would violate the 

### Confrontation Clause 

### ofthe 

### Sixth Amendment 

### to the Constiturion.7 Every court thal has addressed this issue hzis concluded 

### rhac admission of certifications provided pursmmtto Rule 803(6)-including §3505 and Hs analogs in Rules 902(11) and (12)-does not pose Confrontation Clause problems. See United States v. Anekwu, 695 F.3d 967,976 (9th Cir. 2012); United 

### Stales v. Johnson, 688 FJd 494,504 (8th Cir. 2012); United States v. Mallory, 461 F. App'x 352, 356~57 (4th Cir. 2012); United States v. YeleyDavis, 632 F.3d 673, 679-80 (10th Cir. 201 l); United States v. Ellis, 460 F.3d 920, 927 (7th Cii',

7 To be clear, Al-Imam does 

### nol contend th~t the records themselves implicate the Confrontation 

### Clause. With good reason: as the Court explained in Abu Khatallah, "(t]he Supreme Court has recognized that 

### '[b]usiness and public records are generally admissible absent confrontation' because 'they are not testimonial."' 278 F. Supp. 3d at 11 (seco11d 

### alreration in original) (quoting Melendez-Diaz

### v, Massachusetts, 557 U.S. 305, 324 (2009)). 

### 15REDACTED/ CLEARED FOR PUBLIC RELEASE 

### 2006); 

### United States 

### v. Edwards, Case No. ll-cr-129 (CKK), 2012 WL 

### 5522157, at *3 {D.D.C. Nov. 15, 2012); United Stales v. Qualls, 553 F. Supp. 2d 241,246 (E.D.N.Y. 2008). 8 

### This Courtjoins them. In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the Supreme Courtheld that affidavits reporting a forensic analysis wete testimonial and subject 

### to confrontation under the 

### Sixth Amendment because they provided evidence against a criminal defendant. In that case, the Court contrasted these affidavits with "a certificate authenticating an official record---or a copy thereof," which are non-testimonial. Id. at 322. 

### Ayad's attestations do not go to 

### any fact to be proven at trial; 

### rather, they merely 

### lay a 

### foundation for the introduction ofthe phone records themselves. It is the phone records, and not the certification, that will be introdt_iced as substantive evidence against Al-Imam. 

### Ayad's certification ''do[es] not contain any information about [the] defendant(], the relative merits ofthe charges 

### against'' [the) defendant[], or any factual supportfor the charges." Qualls, 553 F. Supp. 2d at 246. Al-Imam contends that these authorities are in~pposite because theirreasoning hinged on the routine nature ofthe certifications at issue whereas the circumstances oflhis 

### case compel a different result. He analogizes Ayad's 

### certification to a hypothetical discussed by 

### the Supreme Court in Melendez-Diaz in which a clerk attests to an unsuccessful searchfor aparticular record,


### see 557 U.S. at 323; this, he contends, is a more apt comparison than 

### Melendez-Diaz)s conclusion that the Confrontation Clause 

### ,vas not implicated 

### by a clerk's attestation that a

8 

### Jn Abu K11atallah, the government did not seek to introduce the certification as evidence, apparently O\.lt 

### ofa concern that because thecertification was preparedfor trial, the Confrontation Clause was implicated. See H1·'g 

### Tr. 

### 2566:17-2567:4 (Oct. 18, 2017), ECF No. 420, 

### United Statesv. Abu Khatallah, Case No. 14-141 (D.D.C.). Although 

### Al-[mam does not focus on tbe 

### fact that the certi

### ficalion was prepared for litigation, it 

### bears 

### 11oting 

### lhat courts have consistently held that because certifications do not go to afact to be proven at trial, bm rather admjssibility ofthe records, they are not testimonial and thus the Confrontation Clause is not implicated even though they are crea1ed for trial. See, e.g,_, Edwards, 2012 WL 

### 5522157, at *2; Qualls, 553 F. Supp. 2d at 246. 16 r~t:OACTED iCL[/l.R''Tl FOR

### rusuc REL.EASE:REDACTED ICLEARED FOR PUBLIC RELEASE document is a 

### copy ofa court

### record. Not so. In offel'ing the 

### hypothetical regarding a failed search for a record, the Supreme Court explained that the clerk's statement would be substantive evidence against a defendant whose guiltdepended on the nonexistence ofthe record. Id. 

### In other words, 

### rhe 

### certificate the St1p1"eme Comt discussed 

### was testimonial 

### inasmuch 

### as ic went to 

### a fact to beproven attrial-anelement ofthe offense. That characteristicjs what likened itto the affidavits at issue in Melendez-Diaz: certifications offorensic analysis 

### fu1ding cocaine used in a drug case. 

### By contrast, Ayad's certification does not ''provid[e] evidence against a defendant," andparallels a clerk's affidavit alllbenticating orproviding a copy ofan otherwise admissible l'ecord. Id. at 322-23 ("A clerk could by affidavit 

### authenticate orprovide a copy ofan otherwise admissible record, but could not ...create a record for the sole purpose ofproviding evidence 

### against a defendant.") Thus, Al-Imam is incorrectthat Ayad's certification, like a clerk's 

### attestation ofa failed search, includes ''implicit(] assumptions and conclusions about the nature ofthe underlying record." Opp'n to 

### MIL at 8. This is little more than a repurposing ofhisprimary contentions that the

### certiftcacjon is insufficient and the records are problematic. Any assumptions or conclusions 

### go not 

### to a facl to be proven 

### al trial regarding Al~Imam's guilt, 

### bul to the authenticity ofthe records--a matter ofrheir admissibilhy. Likewise misplaced is Al-Imam's invocation ofthe D.C. Circuit's discussion inUnited States v. Adefr:hinti, 510 F.Jd 319 (D.C. Cir. 2007). At the outset, lhe Circuit embraced the logic underpinningthe unanimous case law that certifications al'e admissible without implicating the Confrontation

### Cfouse. Id. at 328. In 

### so doing, the court explained thatprocedural safeguards
ensure thal a party can challenge the Ln1stwonhiness ofrecords introduced via certification. The



### 17'7V
REl.JAGTED, CLEAF~ED FUR. PUBLIC RELEASE 

### Circuitcontinued that, ''(i]n an 

### appropriate case the challenge could presumably take the form of calling a certificate's signatory to the stand." Id, Al-Imam suggests tbat lhis portion ofAdefehinti 

### stands for the proposition that if

### the certificates themselves lack indicia oftruslworthiness, fhen 

### the Sixlh Amendment 

### is 

### implicated; he insists that this is such 

### a case and he must have the opportunity lo cross-examine Ayad 

### because the "the

### circumstances ofAyad's cenification 

### ofthe 'original 

### or duplicate' requirement 

### manifestly indicates a lack oftrust\>..1

### orthiness."9 

### Opp'n to MIL at 8. But Adefeh.inti 

### disct1ssed these

### procedmalprotections lo highlight

### how the advance-notice requirement for cei-tificate

### based introduction ofbusiness 

### records mirrors 803(6)'s

### exception for 

### exch.iding business 

### records that indicate lack oftrustworthiness: by 

### requiring advanced notice, lhe opposing 

### party can contend 

### that the records are 

### 1.mtrusrworthy, including 

### by questioning the certificate's 

### signatOJ'y, 510 F.3d at 328. The Circuit's 

### empluisis on procedural prolectionsdesigned to allow a

### partyto challenge introduction of

### the records is not tantamount lo a suggestion 

### that the Sixth Amendment 

### requires the Goven1mem to ptJt 

### the signatory on the stand. As discussed, the certification is not testimonial, and Al-Imam 

### has not 

### anempted to secure Ayad's presence to demonstrnte 

### purported untrustwo1·thiness. See id. at 3'27 (''Adefehinti does not argue that the courtever thwarted

### any effort to call any ofthe certifying c.ustodians[.]"). Moreover, the Supreme Court has clearly stated Lhar the applicability ofthe Confrontation Clause 

### does 

### nol turn on lhe reliability ortrustworthiness ofthe testimony to 

### be

9

### As explained, the Cottl't disagrees with this 

### premise: Ayad examinedthe records, identified several 

### unique details indicative ofLibyana records, and was able to find recor~s for lhe relevant phone nun1ber 

### in Libyana's database. Agenr 

### O'Donnell testified credibly that he and another agent revic\.ved each line ofthe ccl'tification with Ayad 

### to confirm his understanding. 

### Ayad later compared an electronic copy ofthe l'ecords with Libyana's database and once again concluded the records were Libyana records, providing a renewed certification. Based on those facts 1

### the Cot1rt cannot conclude thM Ayad's cerLification is Untrustworthy-let alonemanifestly so--in certifying that the records were dt1plicates. 

### ]8i;F-J;',CTED; CLt!".RED FOR PUSLiC RELEASE proffered. See, e.g., Bullcomingv. NewMexico, 564 U.S. 647,661 (201 l); Melendez-Diaz, 557 U.S. al 318; Crawford v. Washington, 541 U.S. 36, 62 (2004). Thus, Al-Imam cannotbe correct that Adefehinti stands for the proposition that he has the right to confront 

### Ayad because of perceived untrustworthiness in the certification. 

### Ifthat were the case, every defendantwould have a Confrontation Clause right to cross-examine a cenification's signatory, and any exceptions would swallow the rule. That cannot be squared with 

### Adefebinti's embrace ofthe unanimous case law holding that certifications of

### bi1siness records do not implicatethe Confrontation Clause. Finally, Al-Imam contends that Ayad's certification should be excluded pursuant to Federal Rule ofEvidence403, which allows the Court 

### to "exclude

### relevant evidence

### ifits probative value is substamia11y outweighed by·a danger of
... unfair prejudice, confusing the isst1es, (or] misleading thejury," among other things. The 

### n1\e "tilts, as do the r\lles as a whole, toward the admission ofevidence in close cases." United States v. Cassell, 292 F.3d 788, 795 (D.C. Cir. 2002). Al-Irnam explains that because "Ayad is not qualified to ·discuss" whether the records were manipulated before or after

### they were provided to the Government, "admitting his certification, which purports lo answer that question
... would be 

### 1:mfoidy prejudicial." Opp'n at 9. Al-Imam's contention is premised onthe notion 

### lhar it \Vould be unfairly pi-ejudicial for ajury to see a certificationthat lhe records are duplicates ofLibyana records. Ayad's certification does not attest to the acctiracy ofthe records orconclude thar they were not manip~\lated; 

### it merely lays a foundation. for what they are and 

### why 

### they were admitted. Nothing und1.1ly weighs in favor ofa conclusion that they are accurate or that 

### they were not manipulated.

19

### IV. Conclusion For the foregoing reasons, lt is hereby ORDERED 1hat tbe Government's [78] Motion in Limine is GRANTED. 

### SO ORDERED.

Date: 

### May 16, 2019



### 20