I 5-1731-cr United States ofAmerica v. Fawwaz UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ·ORDER

• -- •. 1._ RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITA.TION TO A SUMMARY ORDER FILE)>

. ON OR AFTER JANUARY 1, 2007, IS**PERMITT~D** ANO IS GOVERNED BY**FED~RA~** RULE OF

-APPELLATE PROCEDURE 32.1 AND**Tl~IS COURT'S**  LOCAL RULE 32.1.1.**WHEN .,** **CITI~G** A SUMMARY ORDER IN A DOCUMENT FILED WITH**Tll~S** COURT, A PARTi\' MUST CITE EITHER THE FEDERAL APPENDIX OR.AN ELECTRONIC**DATABAS~** (WITH**TH~** NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A

-COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. '**~** At a stated Term ofthe United States Court ofAppeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City ofNew York on the day of two thousand seventeen
. Present: ROSEMARY S. POOLER, RICHARD C. WESLEY, SUSAN L. CARNEY, Circuit Judges

.

UNITED STATES OF AMERICA, Appellee,


### v. KHALED AL FA WW AZ, AKA Abu Omar, AKA Khaled Abdul Khaled Abdul Rahman Hamah al Fawwaz, AKA Hamad, Defendant

- Appellant. 1
Appearing for Appellant: Bobbi C. Sternheim, New York, NY. 15-1731-cr

David V. Kirby, O'Connor & Kirby , P
.C (Barbara E
. O ' Connor, on the brie f) , Burlington, VT. Appearing for Appellee: Stephen J. Ritchin, Sean Buckley , Assistant United States Attorneys, (Nicholas J
. Lewin, Karl Metzner, Assistant United
1 The Clerk of Court is respectfully directed to amend the caption as above. 

### 2nd June 15-1731-cr United States of America v. FawwazStates Attorneys, on the briefJ,for Joon H. Kim, Acting United States Attorney for the Southern District ofNew York, New York, NY. Appeal from the United States District Court for the Southern District ofNew York (Kaplan, 

### .!. )

. 

### ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that thejudgment of said District Court be and it hereby is 

### AFFIRMED

. Defendant

-Appellant Khaled al Fawwaz appeals the May 19, 2015 judgment of conviction entered against him in the United States District Court for the Southern Distr ict of New York (Kaplan,.!.), following a five-week trial in which thejury found Fawwaz guilty of : (1) conspiracy to murder United States nationals in violation of 18 U.S.C. § 2332(b), (2) conspiracy to murder officers or employees ofthe United States in violation of 18 U.S.C

. 

### § 1114, (3) conspiracy to damage or destroy United States property in violation of 18 U.S.C

. . 

### § 844(n), and (4) destruction ofnational defense material in violation of 18 U.S.C. 

### § 2155(a)

. 

### Special App'x at 1-3. We assume the parties' familiarity with the underlying facts, procedural history, and specification of issues for review. "We review for abuse of discretion a district court's decision to issue a protective order pursuant to Section 4 of [the Classified Information Procedures Act (" CIPA" ), 18 U.S.C. app. 3, §§ 1-16], including its determination whether evidence is helpful or material to the defense and whether unclassified summaries or admissions are properly substituted for classified information." United States v. Abu-Jihaad, 630 F.3d 102, 140 (2d Cir. 2010)

. "CIPA does not confer on the government a privilege to refrain from disclosing classified information; it merely presupposes [a privilege, which] has its origins in the common-law privilege against disclosure of state secrets, which allows the government to withhold information from discovery when disclosure would be inimical to national security. " 

### Id at 140-41 (internal quotation marks and citations omitted). "In determining when a defendant's right to presen t a defense displaces th[is] state-secrets privilege, we . . . ask[] first, whether the material in dispute is discoverable, and if so, whether the state-secrets privilege applies ; and second, ifthe privilege applies , whether the material in dispute is helpful or material to the defense, i.e ., useful to counter the government' s case or to bolster a defense." 

### Id. at 141 (internal quotation marks omitted)

. Under Federal Rule ofEvidence 805 , "[h]earsay within hearsay is not excluded by the rule against hearsay ifeach part ofthe combined statements conforms with an exception to the rule." Fed. R. Evid. 805. Where not every part ofthe combined statements is subject to a hearsay exception, the whole statement must be excluded as inadmissible hearsay. See, e.g ., U n it ed States v. Williams, 927 F.2d 95, 100 (2d Cir

. 1991)

. Where , as here, the statements that Fawwaz seeks to admit constitute hearsay within hearsay not subject to an excepti on, the district court did not abuse its discretion in denying the statem ents ' admission

. See United States v. W ilson, 750 F.2d 7, 9 (2d Cir. 1984). Under Section 3 ofCIPA, di strict courts are authorized " to limit access to classified information to persons with a security clea rance so long as the applica tion ofthis requirement


### 2does not deprive the defense of evidence that would be useful to counter the government's case or to bolster a defense." 

### In re Terrorist Bombings of US. Embassies in 

### E. Afr., 552 F.3d 93, 122 (2d Cir. 2008) (internal quotation marks omitted). With respect to determining the government's interest in avoiding unauthorized disclosures, "[w]e have consistently deferred to executive affidavits predicting harm to the national security, and have found it unwise to undertake searching judicial review." 

### Am

. Civil Liberties Union v. Dep't of Justice, 681F .3d61, 70 (2d Cir. 2012). Further, limited access to this classified information under CIPA need not extend to personal review by a defendant who does not have security clearance when the "interest [the defendant] ha[s] in personally inspecting the material [i]s insufficient to outweigh the government's interest in avoiding unauthorized disclosures ofclassified information." 

### In re Terrorist Bombings of US. Embassies in 

### E. Afr., 552 F.3d at 125. Fawwaz has made no showing on the record before us that the district court's protective order materially hindered his ability to put forth a defense. Accordingly, we hold that the district court's decision to impose a mandatory clearance requirement for access to classified information pursuant to CIPA was well within its informed discretion. 

### Id. at 123. With respect to Fawwaz's challenge to the district court's denial ofhis motion to adjourn trial, "a districtjudge has considerable discretion in the conduct of a trial, [and] an appellate court will not retroactively substitute its discretion for that ofthe trial judge

### unle~s there has been a showing ofabuse. " 

### United States v. Carson, 52 FJd 1173, 1188 (2d Cir. 1995). Indeed, a ruling regarding the conduct of a trial "will not be disturbed unless clear abuse is shown." 

### Sequa Corp. v. GBJCorp., 156 FJd 136, 148 (2d Cir. 1998). To make such a showing, a complaining party "must establish both that the denial of the adjournment was arbitrary, and that it substantially impaired the presentation of his case." 

### United States v. McGee, 564 F.3d 136, 142 (2d Cir. 2009)

. Fawwaz has failed to make such a showing here. Accordingly, we hold that the district court did not abuse its discretion in denying defense counsel's motion for an adjournment. "The trial court's application ofthe rule of completeness is reviewed for abuse of discretion." 

### United States v. Johnson, 507 F.3d 793, 796 (2d Cir. 2007). Under the rule of completeness, "even though a statement may be hearsay, an omitted portion ofthe statement must be placed in evidence if necessary to explain the omitted portion, to place the admitted portion in context, to avoid misleading the jury, or to ensure fair and impartial understanding of the admitted portion." 

### Id. (internal quotation marks and brackets omitted). "The completeness doctrine does not, however, require the admission ofportions ofa statement that are neither exculpatory of r;ior relevant to the admitted passages." 

### Id. Here, the admitted portions ofthe transcript address Fawwaz's state ofmind, while the excluded portions involve a discussion of Fawwaz's response to a document he received. This is similar to 

### United States v. Jackson, in which this Court held that a district court did not abuse its discretion in excluding portions of a phone-call transcript that reflected an individual's statement to a co-conspirator about their continued friendship when the admitted portions ofthat phonecall transcript only reflected that individual's statement to the co-conspirator about the aftermath of the conspiracy. 658 F.3d 145, 149-50 (2d Cir. 20il). As in 

### Jackson, Fawwaz's admitted statements are independent of the omitted statements and the omitted statements are neither

3exculpatory nor relevant to Fawwaz ' s state ofmind

. Even ifthe exclusion ofthese statements was error, it was not reversible error. We have reviewed the entire record on appeal, including the ex parte materials submitted by the government. Based on our review, we conclude that the district court' s decision to exclude these materials was well within its informed discretion. See In re Terrorist Bombings of 

### U.S. Embassies in E. Afr., 552 F.3d at 123. We have considered the remainder ofFawwaz's arguments and find them to be without merit. Accordingly, the judgment ofthe district court hereby is AFFIRMED.

4 FOR THE COURT: Catherine O'Hagan Wolfe , Clerk By :