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 The charges in the Superseding indictment are: Count One - conspiracy to kill American

soldiers in Iraq; Count 2 - Conspiracy to provide material support to terrorists; Count 3 -

distribution of information about making an explosive device [Amawi only]; Count 4 -

distribution of information about making an explosive device [Amawi only]; Count 5 -

distribution of information about making an explosive device [El-Hindi only]; Count 6 -

distribution of information about making an explosive device [El-Hindi only]; Count 7 -

threatening the life of the President [Amawi only]; Count 8 - threatening the life of the President

[Amawi only]; Count 9 - fraud [El-Hindi only]. I have previously granted El-Hindi’s motion for

a separate trial as to Count 9. [Doc. 515].

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

United States of America, Case No. 3:06CR719

Plaintiff

v. ORDER

Mohammed Zaki Amawi, et al.,

Defendant

This is a criminal case in which the government charges three defendants with conspiracies

and other crimes relating to terrorism.1

 Counts Seven and Eight charge the defendant Amawi with

making threats against the life of the President. Although Amawi does not move to sever the trial

of those counts from trial of the other counts against him and his co-defendants, co-defendant ElHindi has moved to have those cases tried separately.

That motion shall be granted. 

The general rule regarding severance is:

“There is a preference in the federal system for joint trials of defendants who are

indicted together.” Consequently, a motion for severance is committed to the sound

discretion of the district judge. A defendant seeking severance at trial from
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co-defendants bears a strong burden and must demonstrate substantial, undue, or

compelling prejudice. In fact, severance is required “only if there is a serious risk

that a joint trial would compromise a specific trial right of one of the defendants, or

prevent the jury from making a reliable judgment about guilt or innocence.”

U.S. v. Davis, 177 F.3d 552, 558 (6th Cir. 1999) (citations omitted). 

It has also been noted, however, that, Fed. R. Crim. P. 14 “allows the court in its discretion

to sever charges or defendants, even where they have been properly joined, if failure to do so would

prejudice the defendant. A motion under the rule is committed to the sound discretion of the trial

court and is ‘virtually unreviewable.’” U.S. v. Cervone, 907 F.2d 332, 341 (2d Cir. 1990) (citation

omitted). One of the considerations where a codefendant seeks to have charges against another

defendant severed is judicial economy. See U.S. v. Haworth, 168 F.R.D. 658, 659 (D. N.M,1996).

The gravamen of this case is that the defendants undertook to become trained in anticipation

of joining the insurgency in Iraq, and thereby providing material support to those fighting our troops

in that country. 

Charges of this provocative sort carry an inherent and self-evident risk of prejudice; great

care must be taken to minimize the risk that inchoate fears about shadowy, but potentially real

dangers will affect the outcome of the jurors’ deliberations.

The charges which El-Hindi seeks to sever relate to two statements by Amawi to the

government’s cooperating witness. That witness recorded the statement constituting the alleged

threat in Count Seven. He did not record the alleged threat in Count Eight. 

There is no allegation that Amawi discussed causing harm to the President with either codefendant. There is no indication that he did anything else indicative of a desire or plan to harm the

President. 
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There appears to be no nexus between these statements and the purpose of the conspiracies

charged in the indictment – namely, to obtain training to prepare to participate in the conflict against

American and other forces in Iraq. Cf. U.S. v. Bissell, 954 F. Supp. 903, 910 (D. N.J.,1997)

(severance properly denied where charges against defendant and co-defendant “were closely

related”); U.S. v. Washington, 819 F.Supp. 358 (D. Vt. 1993) (denying severance of count against

co-defendant charging retaliation against a witness in a drug conspiracy case).

There is no indication that the other defendants were aware of these comments until after

return of the indictment, much less that they agreed, or would have agreed with them. 

There appear to be, therefore, no “common elements of proof” between the rest of the

charges and these two counts. U.S. v. Verra, 203 F. Supp. 87, 90 -91 (S.D. N.Y. 1962) (“Where there

are common elements of proof in the joined offenses, the public interest in avoiding duplicitous,

time-consuming and expensive trials must be weighed against the prejudice which the defendants

envision.”) (footnotes omitted).

Few charges can be more alarming to jurors than threatening the life of the President. The

potential impact of such charges can only be viewed as intensified when the government couples

them for trial with charges related to terrorism. There is a significant risk of irremediable prejudice

to Amawi’s co-defendants if these charges, which relate solely to him, are tried jointly with the

charges against all the defendants. 

The government argues that proof of these charges won’t take much time during the

impending trial. That certainly appears to be so. The government also argues, though, that if I sever

these charges, trial of them by themselves will take a lot more time, as the government will have to

put Amawi’s comments in context with other evidence about his activities.
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Even if that is so – and I am far from persuaded that it is – the resulting impact, based on

considerations of judicial economy, on me, the government, and the defendant, does not outweigh

the clear, and far more tangible, perceptible, and not reasonably deniable risk of prejudice to ElHindi if these counts are tried jointly with the rest of the counts in the indictment. 

The interests of justice are best served by severing these counts and trying them separately.

It is, therefore,

ORDERED THAT the motion of the defendant El-Hindi that Counts Seven and Eight be

severed from trial of the other pending counts be, and the same hereby is granted.

So ordered.

s/James G. Carr

James G. Carr

Chief Judge