152 F.3d 88 (2d Cir. 1998)
The problem with the instant charge is that, as in Dove, the bully’s guilt is assumed in the hypothetical’s premise and the jury is merely instructed on how to look for evidence of that guilt. Consequently, if “virtually all” of the circumstantial evidence pointed towards the possibility of innocence, we might well assume prejudice. However, most of the circumstantial evidence in this case points towards guilt. Furthermore, as in Dizdar, the district court cannot be said to have suggested to the jury that a particular direction should be given to the evidence, as the court, after the bully hypothetical, specifically reminded the jurors that they were free to draw any inferences in either direction. Moreover, as in Gleason, the jury was more than adequately advised of the nature of circumstantial evidence by the neutral “Robinson Crusoe” instruction and was told to use common sense in drawing inferences from the facts. In addition, any presumption of prejudice is strongly tempered by the lack of analogy between the bully hypothetical and the facts of this case. While it would not be a stretch for a jury to liken these defendants to bullies, “[w]e believe it would be denigrating the intelligence of the average jury to conclude that it would forsake its own common sense and experience for the suggestions implied in the court’s ... example.” Gleason, 616 F.2d at 15 (internal quotation marks omitted). Thus, we find that to the extent there was error, it was harmless.
We finally address the appellants’ contention that the court improperly attributed more weight to circumstantial evidence than to direct evidence by stating that, “[d]irect evidence i[s] often misleading [while] circumstantial evidence is quite sufficient.” While the court should have instructed the jury, as it did earlier in its charge, that both types of evidence are weighed equally, United States v. Botsch, 364 F.2d 542, 550 (2d Cir. 1966), it is noteworthy that the court gave this instruction in the context of inferring culpable knowledge or intent.
Commentators agree that it is seldom possible to present testimonial or direct evidence of an accused’s state of mind. Intent as a separate item of proof does not commonly exist. Thus, whenever intent is an element of a crime, its existence must be inferred by considering the laws that generally govern human conduct. Circumstantial evidence of this subjective fact is therefore indispensable.
Mallette v. Scully, 752 F.2d 26, 32 (2d Cir. 1984) (citations omitted). Because as a general rule most evidence of intent is circumstantial, it was perfectly reasonable for the court to emphasize the importance of that type of evidence. In any event, because the appellants’ exculpatory evidence was also exclusively circumstantial (even Salameh’s “evidence of his own words”), the court’s instruction could not have resulted in prejudice. We further observe that, at Ajaj’s request, the court explicitly repeated its earlier instruction on inferences, stating that jurors were free to draw inferences of innocence as well as guilt from the evidence, or no inferences at all. It therefore cannot be said that the court suggested to the jury that inferences favorable to the government were warranted. Consequently, we believe that to the extent the court erred, that error was harmless.
Abouhalima next argues that the district court violated his due process rights by instructing the jury to disregard his argument that only one terrorist magazine article was found during the government’s search of his apartment, an article entitled “Facing the enemies of God-[T]errorism is a[R]eligious [D]uty and [F]orce is [N]ecessary.” Abouhalima maintains that the court’s remarks denied him the ability to argue lack of incriminating evidence, gave the appearance of bias against him and infected his right to a fair trial.
Specifically, during summation, Abouhalima’s counsel argued that although agents who searched his client’s apartment took “a lot of materials, books, everything,” the government only presented two of them. The government, disputing the accuracy of this argument, sought clarification, given that it had offered a total of seven items but the court had only allowed two of them into evidence—the terrorist magazine that Abouhalima refers to (“Facing the enemies of God”) and a book that described the destruction of buildings, entitled “Rapid Destruction and Demolition.” The court addressed that issue when it instructed the jury on the meaning of cumulative evidence, specifically stating:
Now, [Abouhalima’s counsel] argued to you that the government only offered into evidence one magazine from his client Abouhalima’s house, but what happened was the government wanted to put in a pile of stuff. The objection was properly taken. I thought it was cumulative. And I said it was cumulative. I tell you, you can draw no inference whatsoever from the absence of cumulative evidence.
During a break, Abouhalima’s counsel objected to the instruction on grounds the court had actually excluded the evidence on the basis of lack of relevance, not because it was cumulative. Consequently, after that break the court gave the following curative instruction:
[Abouhalima’s counsel] points out to me that he didn’t object to any evidence on the basis of anything being cumulative. He objected on the basis of relevance. Now, relevance means that something has a logical tendency to convince the mind that a fact is so or not so. That’s what relevance is, and I ruled, apparently, not that it was cumulative, but that it was irrelevant because it has nothing to do with the issues in this case. I am quite sure he stated it right, so when I was talking to you about cumulative evidence I made a mistake.
Abouhalima did not object to this curative instruction or request additional corrective measures. On appeal, however, Abouhalima asserts that the correction was insufficient to cure the harm, and that the court should have apologized and instructed the jury to reevaluate Abouhalima’s argument.
“This Court will reverse when ‘it appears clear to the jury that the [district] court believes the accused is guilty.’” United States v. Bejasa, 904 F.2d 137, 141 (2d Cir. 1990) (citing United States v. Nazzaro, 472 F.2d 302, 303 (2d Cir. 1973)). “The vital question is not whether the trial judge’s conduct left something to be desired but ‘whether his behavior was so prejudicial that it denied ... appellant[] a fair, as distinguished from a perfect, trial.’” Id. (citation omitted). “[W]e must make an examination of the entire record ... in order to determine whether the defendant received a fair trial.” Id. (internal quotation marks and citations omitted). Furthermore, when a court errs in the jury charge and delivers a timely curative instruction, we ordinarily may presume that the jury adhered to that correction unless “there is an overwhelming probability that the jury [was] unable to follow the court’s instructions and the evidence is devastating to the defense.” United States v. Colombo, 909 F.2d 711, 715 (2d Cir. 1990) (internal quotation marks and citations omitted) (where prosecutor links a RICO defendant to the rape and sodomy of a woman as background information, but those charges are not before the jury, there is an “overwhelming probability” that, despite a court’s curative limiting instruction, a jury would be unable to consider this evidence dispassionately). When a defendant fails to object to the curative instruction at trial, we review the court’s instruction for plain error. See Olano, 507 U.S. at 734-36, 113 S. Ct. 1770. Under this standard, the appellant has the burden of demonstrating “a miscarriage of justice, or ... an obvious instance of misapplied law.” Latsis, 20 F.3d at 49 (internal quotation marks and citations omitted).
We conclude that Judge Duffy’s mistaken instruction did not convey to the jury that he believed Abouhalima was guilty. Such a message is, at the very least, muddled by the court’s admission of error. We also conclude that based on the record as a whole, the court’s error did not deprive Abouhalima of a fair trial. While the instruction may have momentarily undermined Abouhalima’s narrow argument that there was a lack of incriminating evidence found in his apartment, the court’s timely admission of error and corrective instruction minimized whatever prejudice could have been created by that mistake. See, e.g., United States v. Messina, 131 F.3d 36, 40 (2d Cir. 1997), cert. denied, U.S. -, 118 S. Ct. 1546, 140 L. Ed. 2d 694 (1998). Because under these circumstances there is no “overwhelming probability” that the jury was unable to follow the curative instruction, Abouhalima cannot demonstrate prejudice, let alone a “miscarriage of justice” to warrant reversal under the plain error standard.
Abouhalima next assails the district court’s denial of his request to charge concerning the intent required to be convicted of the conspiracy. Specifically, in Abouhalima’s request to charge, he averred that, based on the conspiracy as charged in the indictment, the government was required to prove specific knowledge and intent to bomb the World Trade Center. The district court disagreed and instead instructed the jury that for purposes of unlawful intent, the object of the conspiracy “is not restricted to a particular building.” Abouhalima argues that the district court’s instruction was error because it invited the jury to convict him without finding the mental element of the crime charged. Moreover, Abouhalima asserts that the court’s “sweeping language” concerning the object of the conspiracy resulted in his conviction “for participation in a conspiracy beyond that which was charged, noticed, and alleged in the government’s proof.” In this regard, Abouhalima argues that through the jury charge, the court constructively amended the indictment to reflect an offense not passed on by the grand jury. Furthermore, Abouhalima asserts that the indictment’s repeated references to the World Trade Center and the government’s repeated references to that complex during opening statements and summation required the government to prove a specific conspiracy to bomb the World Trade Center.1
We disagree. “In order to succeed when challenging jury instructions appellant has the burden of showing that the requested charge accurately represented the law in every respect and that, viewing as a whole the charge actually given, he was prejudiced.” Dove, 916 F.2d at 45 (internal quotation marks and citations omitted). Because Abouhalima cannot show that his request to charge accurately represented the law, we do not reach the issue of prejudice.
It is well settled that the essential elements of the crime of conspiracy are: (1) that the defendant agreed with at least one other person to commit an offense; (2) the defendant knowingly participated in the conspiracy with the specific intent to commit the offenses that were the objects of the conspiracy; and (3) that during the existence of the conspiracy, at least one of the overt acts set forth in the indictment was committed by one or more of the members of the conspiracy in furtherance of the objectives of the conspiracy. See Maldonado-Rivera, 922 F.2d at 961; see also United States v. Wallace, 85 F.3d 1063, 1068 (2d Cir. 1996) (for purposes of conspiracy, unlawful intent is the “specific intent to achieve th[e] object [of the conspiracy]”).
The indictment does not charge the defendants with conspiring to bomb the World Trade Center. The indictment alleges that the defendants conspired “to commit offenses against the United States.” Four objectives of the conspiracy, each a separate bombing violation, are alleged as follows: (i) to bomb buildings used in or affecting interstate and foreign commerce, in violation of 18 U.S.C. § 844(i); (ii) to bomb property and vehicles owned by the United States, in violation of 18 U.S.C. § 844(f); (iii) to transport explosives interstate for the purpose of bombing buildings, vehicles, and other property, in violation of 18 U.S.C. § 844(d); and (iv) to bomb automobiles used in interstate commerce, in violation of 18 U.S.C. § 33. The World Trade Center bombing is not listed as an object of the conspiracy, but merely as one of 31 overt acts alleged to have been committed in furtherance of the conspiracy. Consequently, because the World Trade Center bombing is not alleged as an objective of the conspiracy, the district court did not err in refusing to charge the jury that specific knowledge and intent was required with respect to that bombing.
There is also nothing in the record to support Abouhalima’s contention that the court’s instruction eliminated the specific knowledge and intent required for conviction of the charged conspiracy and thereby constructively amended the indictment. A constructive amendment occurs when
the terms of the indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment.
United States v. Wallace, 59 F.3d 333, 337 (2d Cir. 1995) (quoting United States v. Mollica, 849 F.2d 723, 729 (2d Cir. 1988)); see also United States v. Delano, 55 F.3d 720, 729 (2d Cir. 1995). Consistent with the indictment, the government argued to the jury that the defendants engaged in a conspiracy to bomb buildings, vehicles and property in the United States and the World Trade Center bombing was one act committed in furtherance of the overall conspiracy. Furthermore, the district court’s jury charge closely tracked the indictment.2 The jury also was given a copy of the indictment to take with it during its deliberations, which, as discussed above, clearly stated the objectives of the conspiracy. See United States v. Jones, 30 F.3d 276, 284 (2d Cir. 1994) (perception of prejudice mitigated when jury is given a copy of the indictment). The evidence at trial established a conspiracy to bomb multiple targets and demonstrated that the conspirators successfully bombed the World Trade Center in furtherance of that conspiracy. Accordingly, there was no constructive amendment.
Finally, the government’s multiple references to the World Trade Center in the indictment and during opening statements and summation did not require the court to charge conspiracy to bomb the World Trade Center. Aside from the unprecedented nature of Abouhalima’s argument, those multiple references to the World Trade Center bombing were due to the fact that most of the substantive crimes charged in the indictment stemmed from that bombing.3 In any event, the proof at trial demonstrated that the conspiracy encompassed considerably more than just the bombing of the World Trade Center, including: (1) the existence of additional chemicals recovered from the Shed after the bombing; (2) the modified timing device found in Ayyad’s home; and (3) Ayyad’s continuing attempts to procure additional explosive chemicals after the bombing. The most definitive proof of the broad scope of the conspiracy and the defendants’ intent to commit additional bombings after the World Trade Center was the letter sent to the New York Times claiming responsibility for the bombing and the similar draft letter retrieved from an erased file on Ayyad’s computer disk, both of which speak to future acts of terrorism.
Ajaj attacks the district court’s jury charge on three additional grounds: (1) the court failed expressly to charge the jury that to convict Ajaj of conspiracy, the jury was required to find that Ajaj agreed to the “essential nature of the plan”; (2) with respect to Ajaj’s vicarious criminal liability on Counts Two to Six and Eight to Ten, the district court charged the jury under a Pinkerton theory of liability despite the lack of evidence that Ajaj was a conspirator; and (3) the district court failed to instruct the jury on the issue of Ajaj’s withdrawal from the conspiracy.4
Ajaj argues that the district court failed to instruct the jury that to convict Ajaj as a member of the conspiracy, it had to find that he agreed to the “essential nature of the plan.” According to Ajaj, the essential nature of the plan charged in the indictment was a scheme to bomb a “populated structure in an urban area.” Ajaj argues that the court constructively amended the indictment by instructing the jury that Ajaj could be convicted of conspiracy if he shared in any of the conspiracy’s four objectives and that this instruction rendered the conspiracy count duplicitous. See United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir. 1992) (“An indictment is duplicitous if it joins two or more distinct crimes in a single count.”). Ajaj’s arguments are meritless and we conclude that the district court committed no error.
To convict a defendant on a conspiracy charge, the government must prove that the defendant agreed to the “‘essential nature of the plan’ ... and on the ‘kind of criminal conduct ... in fact contemplated.’” Gleason, 616 F.2d at 16 (citations omitted). The defendant must be shown to have agreed “to commit a particular offense and not merely a vague agreement to do something wrong.” United States v. Provenzano, 615 F.2d 37, 44 (2d Cir. 1980) (emphasis added; citation and internal quotation marks omitted). A court’s jury charge comports with this rule when it sets forth the “essential nature of the plan” by accurately describing “the essence of the [conspiracy’s] underlying illegal objective[s],” United States v. Stavroulakis, 952 F.2d 686, 690 (2d Cir. 1992), and then instructs the jury that the government must demonstrate “‘an agreement as to the objective[s] of the conspiracy,’” Bagaric, 706 F.2d at 63 (citation omitted); see United States v. Attanasio, 870 F.2d 809, 816-17 (2d Cir. 1989). The government is not required to demonstrate that the defendant agreed to all of the conspiracy’s objectives, as long as the defendant shared “some knowledge of the [conspiracy’s] unlawful aims and objectives.” United States v. Heinemann, 801 F.2d 86, 93 (2d Cir. 1986) (internal quotation marks and citation omitted); Gleason, 616 F.2d at 16 (“[Defendant need not know every objective of the conspiracy” to be convicted as a member.).
Here, the court instructed the jury in accordance with these requirements. The court instructed: “Before you can find that the defendant you are considering was a member of the conspiracy, you must conclude that you are satisfied beyond a reasonable doubt that he knowingly and willfully associated himself with the intent to aid in the accomplishment of the purpose of the conspiracy.” The district court then instructed the jury on the “essential nature of the plan” by tracking the language of the relevant bombing statutes that comprised the conspiracy’s objectives.
And we know the purposes are to damage and destroy and attempt to damage and destroy by means of fire and explosives, buildings, vehicles and other real and personal property used in interstate commerce. To damage and destroy by means of fire and explosives, buildings, vehicles and other personal property, in whole or in part owned, possessed, or leased to the United States or departments and agencies of the United States, to transport in interstate commerce explosives with knowledge and intent that the explosives were to be used unlawfully to damage and destroy buildings, vehicles, and other real and personal property, and to damage, disable, destroy, and place and caused to be placed explosives and other destructive substances in, upon, and in proximity to motor vehicles which were used, operated, and employed in interstate commerce.
The district court then instructed the jury that the government was not required to prove that the defendant agreed to all of the conspiracy’s objectives. Rather, the court instructed that to convict Ajaj of conspiracy, “[w]hat is necessary is the defendant must have participated with knowledge of at least some of the basic aims and purposes of the conspiracy and with the intention of aiding in and accomplishing those unlawful ends.” By accurately describing the essence of the underlying conspiratorial objectives as set forth in the indictment, the court guarded against the possibility that Ajaj would be convicted of merely entering into “a general agreement to engage in unspecified criminal conduct.” United States v. Rosenblatt, 554 F.2d 36, 39 (2d Cir. 1977); see United States v. Gallerani, 68 F.3d 611, 618 (2d Cir. 1995) (instructions were erroneous when the jury could “convict the defendant of conspiracy without finding that he had any of the objectives alleged in the indictment”). The court also guarded against a constructive amendment of the indictment. See Wallace, 59 F.3d at 337. Contrary to Ajaj’s argument, Count One of the Southern District indictment did not charge Ajaj with conspiring to bomb a populated structure in an urban area but with conspiring to secure four distinct criminal objectives.
We briefly dispose of Ajaj’s remaining arguments. By charging the jury that Ajaj could be convicted as a member of the conspiracy if he shared some of the conspiracy’s objectives, the court’s charge did not thereby render the conspiracy count duplicitous. The court’s instructions, as well as the indictment, charged Ajaj with membership in a single conspiracy with multiple criminal objectives. See Aracri, 968 F.2d at 1518 (“The allegation in a single count of a conspiracy to commit several crimes is not duplicitous, for the conspiracy is the crime and that is one, however diverse its objects.” (citation, internal quotation marks and alterations omitted)). Furthermore, the district court was not required to specifically instruct the jury, as an element of the conspiracy charge, that Ajaj could be convicted as a conspirator only if he agreed to the “essential nature of the plan.” See generally Edward J. Devitt et al., Federal Jury Practice and Instructions § 28.03 (4th ed. 1990) (setting forth essential elements of conspiracy instructions). The court’s careful jury charge apprized the jury of the essence of the conspiracy’s underlying illegal objectives and instructed the jury that Ajaj could be convicted of conspiracy only if he agreed to one or more of the objectives. We therefore affirm those jury instructions.
Ajaj and Abouhalima each contend that the district court erroneously instructed the jury that they could be convicted on Counts Two to Six and Eight to Ten under a Pinkerton theory of liability. The court instructed the jury that “[i]f in light of my instructions you find beyond a reasonable doubt that a defendant was a member of the conspiracy charged in Count One and, thus, guilty on the conspiracy count, then you may also, but you are not required, to find him guilty of any or all of the substantive crimes charged in Counts Two through Six and Counts Eight through Ten.”
The district court then set forth the elements of the Pinkerton analysis:
First, the crime charged in the substantive count, that is, Counts Two through Six and Counts Eight through Ten was, in fact, committed.
Second, that the person or persons you find actually committed the crime were members of the conspiracy you found to have existed.
Third, that the substantive crime was committed pursuant to the common plan and understanding you found to exist among the conspirators.
Fourth, that the defendant was a member of the conspiracy at the time the substantive crime was committed.
And, fifth, that the defendant could have reasonably foreseen the substantive crime committed by his co-conspirators.
Neither Ajaj nor Abouhalima object to the substance of the district court’s Pinkerton charge but each offers slightly different criticisms of that charge. Ajaj argues that the charge was improper in light of the absence of independent evidence supporting his membership in the conspiracy. Lacking such evidence, Ajaj argues that the district court’s Pinkerton instruction improperly invited the jury to engage in an “inverse-Pinkerton” analysis whereby the jury inferred Ajaj’s participation in the conspiracy from the commission of the substantive offenses. Abouhalima, offering a similar argument, contends that because there was insufficient evidence that he agreed specifically to bomb the World Trade Center, the court’s Pinkerton instruction invited the jury to engage in an “inverse-Pinkerton” analysis. Abouhalima’s argument rests on the premise that the object of the conspiracy charged in the indictment was a scheme to bomb the World Trade Center. We disagree and affirm the propriety of the court’s charge.
Under the Pinkerton doctrine, “a jury [may] find a defendant guilty on a substantive count without specific evidence that he committed the act charged if it is clear that the offense had been committed, that it had been committed in the furtherance of an unlawful conspiracy, and that the defendant was a member of that conspiracy.” United States v. Miley, 513 F.2d 1191, 1208 (2d Cir. 1975) (citing Pinkerton v. United States, 328 U.S. 640, 645, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946)). We have cautioned that “the Pinkerton charge should not be given as a matter of course and in particular where the evidence is such that the jury is required to resort to the inverse of Pinkerton and infer the existence of a conspiracy from the series of disparate criminal offenses.” United States v. Corr, 543 F.2d 1042, 1050 (2d Cir. 1976); see Gleason, 616 F.2d at 19; United States v. Sperling, 506 F.2d 1323, 1342 (2d Cir. 1974) (improper to give Pinkerton charge when “the conspiracy ... must be inferred largely from the series of criminal offenses committed”); United States v. Cantone, 426 F.2d 902, 904-05 (2d Cir. 1970).
Contrary to Ajaj’s argument, the government presented ample evidence of Ajaj’s membership in the conspiracy that bombed the World Trade Center. The government presented evidence that: (1) Ajaj traveled to the Middle East to obtain terrorist training; (2) Ajaj and Yousef studied the construction of explosive devices in the Middle East; (3) Ajaj and Yousef conspired to enter the United States illegally in furtherance of their plot to bomb buildings and vehicles in the United States; and (4) Ajaj remained in close contact with Yousef after his incarceration. See infra Part VII.B. (discussing Ajaj’s sufficiency of evidence argument). Given the ample evidence supporting Ajaj’s conspiracy conviction, the district court’s Pinkerton charge did not invite the jury to engage in an “inverse-Pinkerton” analysis. See United States v. Harwood, 998 F.2d 91, 100 (2d Cir. 1993). Indeed, the district court cautiously instructed the jury that Ajaj could be found guilty of the substantive crimes only after the jury had concluded that he was a conspirator.
Furthermore, Abouhalima’s argument is predicated on the flawed premise that the object of the conspiracy was to bomb the World Trade Center. The indictment, however, alleged four separate objectives, none of which required the government to prove that the defendant was aware of the specific target of the bombing conspiracy. Accordingly, Abouhalima’s “inverse-Pinkerton” argument is misplaced. Given the ample evidence of Abouhalima’s knowing participation in the conspiracy’s objectives, the court’s Pinkerton charge was appropriate. See infra Part VII.C. (discussing Abouhalima’s challenge to the sufficiency of evidence).
Ajaj argues that his arrest and incarceration on passport fraud charges approximately six months prior to the World Trade Center bombing entitled him to a jury instruction on withdrawal from the bombing conspiracy. Ajaj argues that the district court’s failure to provide this instruction constituted plain error. We disagree.
A criminal defendant “is entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible that evidence may be.” United States v. LaMorte, 950 F.2d 80, 84 (2d Cir. 1991) (citation and internal quotation marks omitted); see United States v. Nava-Salazar, 30 F.3d 788, 799 (7th Cir. 1994) (“A defendant is entitled to a withdrawal instruction only if the evidence could sustain that claim.”). Typically, to sustain a withdrawal defense, a defendant is required to present evidence of some “affirmative action [taken] ... to disavow or defeat the purpose” of the conspiracy. Hyde v. United States, 225 U.S. 347, 369, 32 S. Ct. 793, 56 L. Ed. 1114 (1912). “Mere cessation of activity is not enough ...; there must also be affirmative action, either the making of a clean breast to the authorities ... or communication of the abandonment in a manner reasonably calculated to reach co-conspirators.” United States v. Borelli, 336 F.2d 376, 388 (1964).
A conspirator who presents evidence of his imprisonment during the course of the conspiracy is entitled to a jury instruction on withdrawal. See United States v. Panebianco, 543 F.2d 447, 453 (2d Cir. 1976) (“[E]vidence that [defendant] had been incarcerated ... would have been enough to make his withdrawal a jury issue.”); Borelli, 336 F.2d at 390 (concluding that although incarceration for a crime unrelated to the charged conspiracy does not entitle defendant to a directed verdict on withdrawal, “the fact [of incarceration] ... raise[s] a question for the jury on the issue of ... withdrawal”); United States v. Agueci, 310 F.2d 817, 839 (2d Cir. 1962) (“The law is clear ... that while arrest or incarceration may constitute a withdrawal from a conspiracy, it does not follow that in every instance it must.”); see also United States v. Consolidated Laundries Corp., 291 F.2d 563, 573 (2d Cir. 1961). Whether a conspirator’s imprisonment constitutes a withdrawal “must be decided by the jury in light of the length and location of the internment, the nature of the conspiracy, and any other available evidence.” Panebianco, 543 F.2d at 454 n.5.
Ajaj, who was incarcerated during the course of the conspiracy, therefore was entitled to a jury instruction on withdrawal. Ajaj, however, did not raise this contention at trial and we therefore assess the court’s instructions for plain error under Fed. R. Crim. P. 52(b). We conclude that Ajaj has not met his burden of persuasion to demonstrate that the jury, properly instructed, would have found that Ajaj withdrew from the conspiracy.
Other than the fact of his incarceration, Ajaj presented no other evidence at trial to demonstrate that he withdrew from the conspiracy. The government, however, presented compelling evidence that Ajaj, through conversations with Abukhdeir and Yousef, retained a stake in the conspiracy during his six-month imprisonment. Ajaj discussed the bombing conspiracy in coded language and never affirmatively sought to distance himself from his coconspirators. In fact, during one such conversation, Ajaj agreed to convey the terrorist materials to Yousef. Therefore, in light of Ajaj’s relatively short prison sentence on his passport fraud conviction, his internment in New York and the government’s evidence demonstrating Ajaj’s frequent contact with Yousef during the term of his incarceration, we conclude that the district court’s failure to instruct the jury on withdrawal was not plain error.
A defendant challenging a conspiracy conviction on sufficiency grounds “bears a heavy burden.” Masotto, 73 F.3d at 1241 (citation omitted). We review the evidence in the light most favorable to the government and credit every inference that the jury might have drawn in the government’s favor. See United States v. Aulicino, 44 F.3d 1102, 1114 (2d Cir. 1995). Furthermore, we assess the evidence “not in isolation but in conjunction,” United States v. Pitre, 960 F.2d 1112, 1120 (2d Cir. 1992) (citation and internal quotation marks omitted), and the jury’s verdict must be sustained if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). “The government’s case need not exclude ‘every possible hypothesis of innocence’ ... and it is the task of the jury, not the court, to choose among competing inferences.” United States v. Martinez, 54 F.3d 1040, 1042-43 (2d Cir. 1995). Deference to the jury’s verdict is especially due when reviewing a conspiracy conviction because conspiracies are “secretive operation[s], and it is a rare case where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon’s scalpel.” Pitre, 960 F.2d at 1121 (citations and internal quotation marks omitted).
To convict a defendant as a member of a conspiracy, the government must prove that the defendant “agree[d] on the essential nature of the plan.” Gleason, 616 F.2d at 16 (citation and internal quotation marks omitted). To identify the “essential nature of the plan,” we focus on the “essence of the underlying illegal objective[s],” and the “kind of criminal conduct ... in fact contemplated,” Stavroulakis, 952 F.2d at 690 (citations omitted). See also Rosenblatt, 554 F.2d at 39. The government must prove that the defendant agreed “to commit a particular offense and not merely a vague agreement to do something wrong.” Provenzano, 615 F.2d at 44 (emphasis added; citation and internal quotation marks omitted). Where conspirators are charged with pursuing multiple criminal objectives, the government is not required to prove that the defendant agreed to all of the objectives. Gleason, 616 F.2d at 16. Rather, the government must show that the defendant shared “some knowledge of the [conspiracy’s] unlawful aims and objectives.” United States v. Heinemann, 801 F.2d at 93 (citation and internal quotation marks omitted).
“[O]nce a conspiracy is shown, only slight evidence is needed to link another defendant with it.” United States v. Roldan-Zapata, 916 F.2d 795, 802 (2d Cir. 1990) (citation and internal quotation marks omitted). Mere association with conspirators and suspicious circumstances, however, are insufficient bases for a conspiracy conviction. See United States v. Nusraty, 867 F.2d 759, 763-64 (2d Cir. 1989); United States v. Duckett, 550 F.2d 1027, 1030 (5th Cir. 1977) (“The joint presence of the defendant and the conspirators at the airport and the preexisting relationship between the parties is insufficient alone to prove beyond a reasonable doubt that defendant had a part in the conspiracy.”).
Moreover, we have held that “a conspirator can be held responsible for the substantive crimes committed by his co-conspirators to the extent those offenses were reasonably foreseeable consequences of acts furthering the unlawful agreement, even if [the conspirator] did not himself participate in the substantive crimes.” United States v. Romero, 897 F.2d 47, 51 (2d Cir. 1990) (citing Pinkerton, 328 U.S. at 647, 66 S. Ct. 1180).
Ajaj argues that the government presented insufficient evidence to establish his guilt on the counts for which he was convicted. As an initial matter, Ajaj argues that the government failed to prove his membership in the conspiracy that bombed the World Trade Center. Ajaj contends that the government’s evidence fails to prove that Ajaj agreed to the “essential nature of the plan,” that is, to bomb a populated structure in an urban area. According to Ajaj, the government’s conviction was derived from evidence that proves nothing more than that Ajaj attempted to enter the United States illegally and had a passing association with Yousef. On appeal, Ajaj revisits the government’s case at trial, seeking to demonstrate that the government’s evidence is susceptible to alternative inferences consistent with Ajaj’s innocence.5
Ajaj also argues that, assuming he is guilty of conspiracy, the government failed to present sufficient evidence under the Pinkerton doctrine that he is vicariously liable for crimes arising from the bombing of the World Trade Center. See Pinkerton, 328 U.S. at 647-48, 66 S. Ct. 1180. In the alternative, Ajaj argues that his incarceration before the construction and detonation of the World Trade Center bomb constituted a withdrawal from the conspiracy as a matter of law, shielding him from criminal liability for the offenses later committed by his co-conspirators. See United States v. Greenfield, 44 F.3d 1141, 1150 (2d Cir. 1995). Ajaj also challenges the sufficiency of evidence supporting his conviction for violation of the Travel Act, 18 U.S.C. § 1952. To prove a violation of the Travel Act, the government was required to establish that Ajaj: (1) used a facility of interstate or foreign commerce; (2) with intent to commit any unlawful activity (including arson in violation of New York state law); and (3) thereafter performed an additional act to further the unlawful activity. See United States v. Jenkins, 943 F.2d 167, 172 (2d Cir. 1991). The general definition of arson under New York law is the intentional or reckless damaging of a vehicle or building by fire or explosion. See N.Y. Penal Law §§ 150.05, 150.10 (McKinney 1988); United States v. Kahn, 472 F.2d 272, 277 (2d Cir. 1973) (“[T]he initial inquiry in a Travel Act case is whether the underlying activity violates a state law.”); see also United States v. Jones, 909 F.2d 533, 537 (D.C. Cir. 1990). Ajaj’s arguments are unpersuasive.
Count One of the Southern District indictment charged Ajaj with conspiring, in violation of 18 U.S.C. § 371, to (a) bomb buildings, vehicles and other property used in interstate commerce, 18 U.S.C. § 844(i); (b) bomb buildings, vehicles and other property owned, used by and leased to the United States and its departments and agencies, 18 U.S.C. § 844(f); (c) transport explosives interstate to bomb buildings, vehicles, and other property, 18 U.S.C. § 844(d); and (d) bomb automobiles used in interstate commerce with reckless disregard for the safety of human life, 18 U.S.C. § 33.
Counts Two to Six and Counts Eight to Ten charged Ajaj with the substantive offenses arising from the World Trade Center bombing. Ajaj was charged with (1) bombing a building used in or affecting interstate or foreign commerce, 18 U.S.C. §§ 844(i) and 2 (Count Two); (2) bombing buildings, vehicles and property owned, used by and leased to the United States and its departments or agencies, 18 U.S.C. §§ 844(f) and 2 (Count Three); (3) transporting a bomb interstate to destroy buildings, vehicles or other property, 18 U.S.C. §§ 844(d) and 2 (Count Four); (4) bombing vehicles used in interstate commerce, with reckless disregard for the safety of human life, 18 U.S.C. §§ 33, 34, and 2 (Counts Five and Six); (5) assaulting federal officers, 18 U.S.C. §§ 111 and 2 (Count 8); (6) using or carrying a destructive device during and in relation to a crime of violence, that is, the assault on federal officers charged in Count Eight and the bombing conspiracy charged in Count One, 18 U.S.C. §§ 924(c) and 2 (Counts 9 and 10, respectively). In addition, Count Seven charged Ajaj and Yousef with violating the Travel Act, 18 U.S.C. §§ 1952 and 2, by traveling in foreign commerce with intent to commit crimes of violence, namely arson, and to promote that unlawful activity.6 For the following reasons, we conclude that the government presented ample evidence to support Ajaj’s conviction on all ten counts.
With respect to the conviction under Count One for conspiracy, the government’s argument at trial that Ajaj not only agreed to the essential nature of the plan but was one of the conspiracy’s architects enjoyed solid evidentiary support. The government established that in April 1992, Ajaj surreptitiously traveled from the United States to Pakistan to attend Camp Khaldan, a terrorist training camp. Evidence presented at trial demonstrated that Ajaj traveled to Pakistan under an alias, misrepresented to his landlord in Texas that he was moving to New York, and sought to conceal his departure from family members. Ajaj, in the Middle East, obtained a letter of introduction to Camp Khaldan and terrorist materials that contained instructions on the sabotage of buildings and vehicles with explosives. Significantly, these manuals bore Ajaj’s fingerprints as well as handwritten notes that set forth formulae for various explosives. Ajaj also obtained propaganda materials expressing anti-American sentiments, including an instructional videotape that began with the suicide bombing of an American Embassy using a van.
The government further established that Ajaj, once in the Middle East, made contact with Yousef and they together plotted to bomb targets in the United States. The presence of both of their fingerprints in the terrorist manuals indicated that Ajaj and Yousef studied the materials, assimilating knowledge that Yousef later applied directly to the construction of the World Trade Center bomb. For example, Ajaj’s fingerprints appear on a manual page that contains the formula for urea nitrate, the same compound used as the main charge for the World Trade Center bomb.7 The same section of that terrorist manual also instructs that the addition of aluminum powder and other metals enhance urea nitrate’s destructive impact, instructions followed by the conspirators as well. Yousef’s fingerprints appear on a manual page opposite the formula for ammonium nitrate, a compound the conspirators utilized to boost the bomb’s main charge. Moreover, the conspirators used nitroglycerine and lead azide as “boosters” for the World Trade Center bomb, consistent with instructions contained in the handwritten notebooks.
The government demonstrated that after completing their training, Ajaj and Yousef jointly prepared to enter the United States illegally. Ajaj and Yousef carefully created false identities for themselves in the names of “Khurram Khan” and “Azan Mohammad,” respectively. They collected false passports, identification cards and bank, education and medical records to support their false identities. According to the government, Ajaj agreed with Yousef that he would carry the terrorist materials in his own belongings to maximize Yousef’s chances of entering the United States without garnering suspicion. To facilitate Ajaj’s own entry into the United States with the terrorist materials, he was assigned a fake Swedish passport issued to a “Khurram Khan,” as individuals bearing a valid Swedish passport do not need a visa to enter the United States. Later, on Yousef’s arrest at Kennedy Airport, INS inspectors searched Yousef’s belongings and found evidence linking him to Ajaj. Among other things, they found an identification card bearing Yousef’s picture and the name “Khurram Khan” (Ajaj’s alias) as well as a small notepad containing the Dallas, Texas, telephone number and address of Ajaj’s friend, Mohammad Abukhdeir. Yousef, on questioning, claimed to be traveling alone, and he was later released on his own recognizance. Similarly, when INS officials searched Ajaj’s belongings, they discovered evidence that linked Ajaj to Yousef. Among other things, they found a British passport and an airline ticket issued to an “Azan Mohammad,” which was the alias that Yousef had traveled under. INS inspectors also found an identification card for a “Khurram Khan,” identical to the one found in Yousef’s possession, but with Ajaj’s, not Yousef’s, photograph affixed.
Evidence presented at trial also established that Ajaj facilitated Yousef’s entry into the United States at Kennedy Airport and remained in close contact with Yousef after Ajaj’s incarceration for passport fraud. Customs Inspector Robert Malafronte testified at trial that Ajaj, when questioned at Kennedy Airport as to whether he was traveling with others, lied and claimed to be traveling alone. According to the government, Ajaj, by relieving Yousef of the terrorist materials and lying about their association, effectively deflected the INS’s attention away from Yousef and facilitated Yousef’s entry into the United States.
Ajaj’s participation in the conspiracy continued even after his incarceration on the passport fraud conviction. Ajaj stayed abreast of the conspiracy’s progress through telephone conversations with Yousef. Ajaj never contacted Yousef directly but telephoned a friend, Mohammad Abukhdeir in Texas, who then, as an intermediary, either relayed messages or patched three-way calls to Yousef. According to the government, Ajaj, Abukhdeir and Yousef discussed the bombing conspiracy in code, referring to Yousef as “Rashed,” the bomb plot as the “study” and the terrorist materials as “university papers.” During one such conversation on December 29, 1992, Ajaj agreed to convey the terrorist materials to Yousef. Specifically, Ajaj informed Yousef that the United States District Court for the Eastern District of New York had ordered the government to return Ajaj’s belongings, including the terrorist materials. When Yousef asked if he could take possession of Ajaj’s belongings, Ajaj at first agreed but then opined that its shipment to Yousef would jeopardize Yousef’s “business” which would be “a pity!” Ajaj suggested that it would be “preferable that you send someone else to get them.” Yousef agreed, stating that he would “send someone else than me” and would give Ajaj, through Abukhdeir, the “address of someone here” who was one of Yousef’s “friends.” Ajaj agreed and assured Yousef that proceeding in this manner was “better so that you don’t jeopardize your work.”
In sum, the government presented ample evidence to demonstrate that Ajaj agreed to the essential nature of the conspiracy’s plan. The government’s evidence went far beyond proving Ajaj’s mere association with terrorists and suspicious circumstances. The possibility that the government’s evidence at trial is subject to alternative inferences consistent with Ajaj’s innocence does not vitiate the reasonableness of the jury verdict.8
Furthermore, there was sufficient evidence to convict Ajaj of the substantive counts charged in the indictment. With respect to Ajaj’s vicarious criminal liability on Counts Two to Six and Eight to Ten under the Pinkerton doctrine, the terrorist manuals and anti-American propaganda materials discovered in Ajaj’s possession at Kennedy Airport constituted sufficient evidence for the jury to conclude that the crimes arising from the World Trade Center bombing were committed in furtherance of and were reasonably foreseeable consequences of the bombing conspiracy.9 Moreover, in light of Ajaj’s travel to the United States from Pakistan with the terrorist materials, and his denial of Yousef at Kennedy Airport, the evidence was sufficient to convict Ajaj under Count Seven for violating the Travel Act, 18 U.S.C. § 1952. As a final point, we reject Ajaj’s argument that, as a matter of law, his incarceration on passport fraud charges constituted his withdrawal from the bombing conspiracy. To the contrary, we have held that “imprisonment for an offense unrelated to the conspiracy charged does not, standing alone, entitle a defendant to a directed verdict with respect to his withdrawal.... Thus, whether an imprisonment constitutes withdrawal from a conspiracy must be decided by the jury.” Panebianco, 543 F.2d at 454 n.5.10
Abouhalima argues that the evidence presented at trial does not support a finding that he was a participant in the conspiracy to bomb the World Trade Center, but instead shows only that he knew the other defendants in this case and was present when they were taking some of the actions that furthered the conspiracy. The indictment charged Abouhalima with the same substantive offenses arising from the World Trade Center bombing (Counts Two to Six and Eight to Ten) and participation in the same conspiracy (Count One) as Ajaj, see supra Part VII.B., and, like Ajaj, he was convicted on all of these counts. Abouhalima is correct that these convictions would be unsupported in the absence of an adequate showing that he was in fact a participant in the conspiracy. “[M]ere association with those implicated in an unlawful undertaking is not enough to prove knowing involvement” in that criminal activity. Nusraty, 867 F.2d at 764; see also, e.g., United States v. Rios, 856 F.2d 493, 496 (2d Cir. 1988). Moreover, mere presence while actions are being taken in furtherance of a conspiracy is likewise insufficient to prove “knowing conspiratorial agreement.” Nusraty, 867 F.2d at 764; see also United States v. Vilhotti, 452 F.2d 1186, 1189 (2d Cir. 1971).
Contrary to Abouhalima’s claims, however, the government presented more than enough evidence from which the jury could have concluded beyond a reasonable doubt that Abouhalima was a knowing member of the conspiracy and was guilty, either directly or on a Pinkerton theory, on all of the substantive counts with which he was charged.
First, there was testimony that Abouhalima helped Salameh and Yousef find the apartment at 40 Pamrapo. And the evidence that 40 Pamrapo was intended to and did serve as a bomb factory was strong. The location fit the recommendation in Ajaj’s terrorist materials that a base of terrorist activities should be located in a ground floor apartment so as to facilitate easy escape if it should become necessary to flee the premises. The apartment had bluish stains on the walls and rust on the inside door knob and hinges of the back bedroom door, both consistent with the fumes generated by mixing explosives such as urea nitrate and nitroglycerine. Most important, samples of these two chemicals were found in scrapings taken from various items in the apartment.11
Second, a receipt entered into evidence showed that Abouhalima was the purchaser of a refrigerator that bore Yousef’s fingerprint and contained traces of nitroglycerine. The government presented evidence that the 40 Pamrapo apartment had not been equipped with a refrigerator when Salameh and Yousef moved in, and also pointed to passages in Ajaj’s terrorist manuals that recommended stabilizing nitroglycerine by freezing it. Although Abouhalima’s refrigerator was recovered from another location, there was sufficient information to permit the jury to infer that Abouhalima supplied the refrigerator to Yousef and Salameh at the 40 Pamrapo apartment as a storage facility for nitroglycerine, and that the refrigerator was subsequently removed and taken to the location where it was later discovered.12
Third, there was testimony that, in the weeks preceding the bombing, Abouhalima, a limousine driver, made several unsuccessful attempts to secure the use of a van from his employer. The jury was entitled to conclude, in the light of the other evidence linking Abouhalima to the conspiracy, that Abouhalima sought to obtain such a vehicle in order to transport the bomb or otherwise to further the aims of the conspiracy, and that the co-conspirators were forced to rent the Ryder van because Abouhalima was unable to do so.
Fourth, one of Abouhalima’s dress shoes, recovered from his apartment after the bombing, was found to have a burn that contained high levels of sulfate ions. The presence of such ions was shown to be consistent with having been burned by sulfuric acid, an ingredient in nitroglycerine. Moreover, a crystal of magnesium sulfate was found on the shoe. This substance can be made by mixing sulfuric acid and magnesium (an element that can enhance the destructive capacity of a urea nitrate bomb like the one used on the World Trade Center).
Fifth, in addition to the shoe, a copy of “Rapid Destruction and Demolition” was discovered at Abouhalima’s home. Abouhalima’s fingerprint was recovered from a page in this publication providing a formula for making explosives that could be used to destroy buildings. (Another copy of this same item was recovered from Ajaj at Kennedy Airport when Ajaj was stopped by United States customs officials as he attempted to enter the country with his terrorist materials.)
Sixth, there was evidence that Abouhalima purchased a can of “Hodgdon” brand smokeless powder, a substance similar to that used in the detonator of the bomb planted at the World Trade Center. After the bombing, a Hodgdon smokeless powder can was found in the storage shed along with the conspirators’ other remaining chemicals. (The can had been emptied and then refilled with magnesium, another bomb ingredient.)
Seventh, the government offered telephone records for a calling card that belonged to Abouhalima. These revealed that Abouhalima was in frequent contact with the other defendants. Moreover, the card was used to make various calls to chemical companies and garden supply stores. These establishments sold ingredients that could be used to make the explosives employed in the World Trade Center bomb.13
Eighth, a gas station attendant identified Abouhalima as the driver of a Lincoln Town Car (to which Abouhalima had access in the course of his employment as a limousine driver) that accompanied the Ryder van carrying Salameh and Yousef (and presumably also the bomb) early in the morning of the day on which the bomb was detonated. The attendant stated that Abouhalima paid to fill the gas tanks of both vehicles.
Finally, on the day following the bombing, Abouhalima made arrangements to flee the country. On March 2, 1993, leaving his family behind, Abouhalima traveled from the United States to the Sudan without any luggage and with only a one-way ticket. The jury was entitled to infer consciousness of guilt from the facts surrounding this flight. See United States v. Sanchez, 790 F.2d 245, 252 (2d Cir. 1986).
All of this evidence was more than sufficient, when taken together, to establish beyond a reasonable doubt that Abouhalima was a knowing and active participant in the conspiracy to bomb the World Trade Center; that he, himself, committed at least some of the substantive offenses in the indictment; and, to the extent that he did not directly participate in the substantive acts, that he was nonetheless liable under the Pinkerton doctrine.
Ajaj argues that the cumulative effect of the district court’s errors, in addition to the prejudicial circumstances that hindered the presentation of his defense, resulted in a fundamentally unfair trial that violated his right to due process. See Taylor v. Kentucky, 436 U.S. 478, 487 & n.15, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978) (“[C]umulative effect of the potentially damaging circumstances of this case violated the due process guarantee of fundamental fairness.”); United States v. Rivera, 900 F.2d 1462, 1477 (10th Cir. 1990) (“Courts have ... found fundamental unfairness when error is considered in conjunction with other prejudicial circumstances within the trial, even though such other circumstances may not individually rise to the level of error.”); United States v. Diharce-Estrada, 526 F.2d 637, 642 (5th Cir. 1976). In addition to the district court’s commission of a number of legal errors, Ajaj argues that his trial counsel did not have an adequate opportunity to prepare Ajaj’s defense. Ajaj’s trial counsel was appointed to represent Ajaj on June 21, 1993 and had less than three months to prepare before trial commenced on September 14, 1993. Ajaj argues that his attorney did not have enough time to conduct an international investigation in the Middle East or to translate and review critical Arabic documents and tapes. Compounding the difficulties, Ajaj’s defense was hampered by Ajaj’s poor English, his imprisonment, ill health, and the government’s failure to provide critical items of discovery material in a timely manner.
We disagree. The record does not support Ajaj’s claim that the circumstances of his trial were so prejudicial that his right to due process was denied. We conclude that Ajaj overstates the impact, if any, that his health and English-speaking ability had on the effective presentation of his defense. Moreover, Ajaj’s contention that his attorney did not have an adequate opportunity to prepare his defense, given the speed with which his case was brought to trial and the government’s discovery delays, is undermined by the failure of his attorney ever to seek a continuance. In sum, we conclude that Ajaj received a fair trial.
Ajaj moves for a new trial based on, inter alia, allegedly newly discovered evidence.14
This motion is before us in an unusual procedural posture. After the initial judgments of conviction (March 24, 1994) and sentences (May 24, 1994) were entered, the appellants filed their respective notices of appeal. Briefing was set, and appellants’ briefs were due by June 30, 1995. On June 23, 1995, Abouhalima and Ajaj independently filed motions to remand the proceedings to the district court. One of the grounds for Ajaj’s motion was the alleged discovery of new evidence. If the district court ruled favorably on some of the newly raised post-trial claims, it was reasoned, the appeals might be rendered moot. A panel of this court, consisting of (now) Chief Judge Winter, and Judges Calabresi and Cabranes, heard oral argument on the motion July 18, 1995, at which counsel for Ayyad and Salameh were also in attendance (the “Remand Motion”).
At oral argument of the Remand Motion, counsel for Ajaj argued that the fact-dependent nature of Ajaj’s new trial motion also militated in favor of resolution of the motion in the first instance by the district court, which was well-versed in the complexity of the case. In addition, counsel made clear that, since she was newly appointed, she required more time to complete the post-trial motion. Based on the consent of all four appellants, we granted the motions to remand, but denied Abouhalima’s request for their reassignment to a different district judge. We therefore dismissed the appeals, but made clear that when the district court had decided the post-trial motions, the appeals would be automatically reinstated, without the need to file new notices of appeal. See United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994). The order was filed the same day oral argument was heard.
Later that month, on July 26, the district court held a conference with respect to the post-trial motions. At this conference, Judge Duffy expressed skepticism with respect to the newly discovered evidence, reiterating that “I don’t see anything new.” Because Judge Duffy apparently believed that the meat of the post-trial motions lay in the ineffective assistance of counsel claims—the arguments that appeared ripe for presentation—he immediately scheduled an August argument date. But this was before Ajaj’s counsel had had the opportunity to complete her full motion, which, as she had explained to the Remand Motion panel, would require some time.
Disenchanted with the district court’s accelerated schedule, Ajaj returned to our court in August seeking a petition for mandamus to order the district court “(1) to review and decide the defendant’s applications related to preliminary steps necessary to the finalizing of the defendant’s motion for a new trial; (2) to then permit the filing of a completed motion for a new trial; and (3) to rule on the propriety of an evidentiary hearing and to issue a decision on the motion for a new trial in a manner susceptible of review by [our] Court.”
On August 9, 1995, we denied Ajaj’s mandamus petition (the “Denial of Mandamus Order”), but did so with leave to renew if the district court failed: (1) to receive the government’s written responses to the post-trial motions; (2) to conduct such an evidentiary hearing as it may determine necessary no earlier than 30 days following the date the responses were received; and (3) to rule specifically on each issue raised by the post-trial motions.
Pursuant to this August order, and our original remand instructions, Ajaj’s counsel filed her completed post-trial motion that October. The government filed a response on November 16, and the district court scheduled a conference the next day. At this November conference, Judge Duffy inquired whether counsel would be prepared to proceed to a hearing in fewer than thirty days (as specified by our Court’s order), given the then-imminent sentencing in one of the related proceedings. Counsel declined, and were told that they would consequently have to wait “at least a year” to have their post-trial hearing.
While the parties waited for a post-trial hearing date, in April of 1996, Ajaj filed a Reply Brief to the government’s answer to his post-trial motion. For reasons that are not altogether clear, Ajaj also filed a motion in this Court to reinstate the appeals that had been initially remanded at his request.
On April 29, 1996, another motions panel of our Court heard oral argument, and again summoned all parties’ counsel (the “Reinstatement Motion”). Ajaj argued that because one of the original reasons for delaying the direct appeal (inadequate time to prepare) no longer existed, the case should proceed to the Court of Appeals. No mention was made of one of the other arguments originally pressed by Ajaj for remand—that the district court was the appropriate forum for initial resolution of the new trial motion. This Reinstatement Motion was heard by then-Chief Judge Newman, and Judges McLaughlin and Cabranes. In a published opinion, we granted the motion to reinstate the appeals. See United States v. Salameh, 84 F.3d 47, 51 (2d Cir. 1996).
The Reinstatement Motion panel expressly addressed the issue of the still-unadjudicated post-trial motions, and the ability (and propriety) of passing on them at the appellate level in the first instance. It resolved the issue so as to maximize the flexibility of the panel that would ultimately hear the appeals—this panel:
We believe that concern [of the appellate panel’s fitness to resolve the fact-dependent post-trial motions in the first instance] can be adequately dealt with by the merits panel to which these appeals will be assigned. In granting the motion to reinstate the appeals, we restore to our jurisdiction only the appeals for which notices of appeal were previously filed, i.e., the appeals from the four judgments of conviction. It will be up to the panel hearing those appeals to determine, upon proper application, whether appellate jurisdiction should be exercised to any additional extent and to what extent, if any, matters inserted into the record after the judgments of conviction should be considered.
Id.
As a result, the question before us is simply to what extent (if any) our panel should reach out and exercise jurisdiction over the yet-to-be-addressed post-trial motions. After carefully reviewing the claims of the appellants, and the procedural posture of this case, we decline to consider Ajaj’s motion for a new trial at this time.
As the convoluted procedural history of this case demonstrates, Ajaj’s motion for a new trial is grounded largely in newly discovered evidence. Indeed, as was originally argued to the Remand Motion panel, the complexity and fact-sensitivity of the claims require resolution of this motion, in the first instance, by the district court. For example, Ajaj cites such post-trial evidence as an interview with his Texas immigration lawyer and statements that arose at the Abdel Rahman trial. We think that the best solution for a motion that deals with post-trial matters of this sort is that it be addressed, as such motions normally are, by the district court first.15
The parties, on both sides, have spilt much ink over who is using and who is abusing the procedural machinery of the district court and of the Court of Appeals. And we also recognize that several comments made by Judge Duffy, taken out of context, might be read to suggest some hostility toward the newly discovered evidence claims. Some tension is perhaps unavoidable in a case of this difficulty and significance. We are confident, however—now that a large number of previous concerns over timing have been rendered moot—that the district court will be able to schedule proceedings expeditiously, and that the parties will assist that court by clarifying any issues that remain.16 After that, as we indicated in our order denying mandamus, the district court may issue its order granting or denying some or all of the relief that is sought, and specifying the reasons for its conclusions. At that point, and only after the district court has ruled on the claims, should further application for appellate review be made by the parties.
Three of the four appellants, Abouhalima, Ajaj, and Ayyad, have made arguments regarding ineffective assistance of counsel. The procedural postures of these motions are varied: First, Abouhalima’s ineffective assistance claims are not directly advanced on this appeal.17 Second, Ajaj links some of his ineffectiveness claims to his new trial claims, which we have just concluded should best be decided by the district court. Finally, Ayyad presses his ineffectiveness claims on this direct appeal, preferring to have our court reach the merits forthwith.
Generally, Courts of Appeals are reluctant to address ineffectiveness claims on direct review. The rationale for this policy is that the constitutional sufficiency of counsel’s performance is usually unripe for seasoned retrospection until after the trial and whatever appeal may follow. For this reason, many courts forbid a claim of ineffective assistance of counsel to be raised on direct appeal. See, e.g., United States v. McGill, 952 F.2d 16, 19 (1st Cir. 1991); see also United States v. Cronic, 466 U.S. 648, 667 n.42, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) (noting the argument of the Solicitor General that ineffectiveness claims are more properly brought in 28 U.S.C. § 2255 petitions than on direct review). Similarly, there is generally no procedural bar that follows a failure to bring an ineffectiveness claim on direct review. See Billy-Eko v. United States, 8 F.3d 111, 114 (2d Cir. 1993).
Our own Circuit does permit direct review of such claims in certain narrow circumstances. See id. at 114-15 (describing this as a “narrow category of cases” in which the defendant has a new counsel on appeal and argues no ground of ineffectiveness that is not fully developed in the trial record). And in such circumstances, the specter of procedural forfeit, if the claim is not raised, does exist. See id.
Because, however, Ajaj’s ineffectiveness claims appear, at least in part, to intertwine with his newly discovered evidence allegations, and because Abouhalima’s claims are not pressed on direct appeal, the only appellant to whom Billy-Eko arguably might apply is Ayyad. But Ayyad, while devoting much of his appellate brief to the ineffectiveness of his trial counsel, never explains why, given our disinclination to grant direct review of such allegations, we should hear his claims at this early juncture.
Moreover, the government’s passing footnote reference to Billy-Eko hardly suffices to induce us to hear the claim at this time.18 It must be remembered that the Billy-Eko doctrine is discretionary, and, given the baseline aversion to resolving ineffectiveness claims on direct review, see, e.g., United States v. Workman, 80 F.3d 688, 701 (2d Cir. 1996), it should not be invoked lightly.19
Accordingly—and also taking into account the fact that Ayyad’s co-defendants are having their ineffective-assistance claims remanded for adjudication by the district court—we decline to exercise our discretion to hear Ayyad’s similar claims on direct review. We therefore add these to the arguments that are to be addressed first by Judge Duffy.
All the defendants seek vacatur of their sentences on the ground that the district court erred in allowing them to proceed pro se at their sentencing hearing. After renouncing their trial counsel, the four defendants participated in their May 24, 1994, sentencing proceeding without counsel. The government admits that the record does not reflect a knowing, intelligent and voluntary waiver of the defendants’ right to counsel as mandated by Faretta v. California, 422 U.S. 806, 834, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), and does not object to vacatur. We have reviewed the record and agree that the defendants do not appear to have waived their right to counsel at the sentencing hearing. Accordingly, we vacate and remand for resentencing.
Although Abouhalima has at times indicated that we should consider reassigning the remanded proceedings to a different judge, such a measure is rarely taken. See United States v. Gaviria, 49 F.3d 89, 92 (2d Cir. 1995) (“[R]emanding to a different district judge is an extraordinary remedy ... [to] be reserved for the extraordinary case.”) (internal quotation marks and citation omitted; alteration in original). More important, at oral argument all four appellants were expressly asked if they had any objection to matters being returned to Judge Duffy, and no such objections were raised. Under the circumstances, we believe the sentences in all four cases should be vacated and the matter remanded to Judge Duffy.20
We have conducted a thorough review of all the arguments raised by appellants, and find no basis for reversal in any of them. Accordingly, and for the reasons presented above, we AFFIRM the judgments of conviction as to all four defendants, we DISMISS and REMAND their post-trial motions as premature for appellate consideration (acknowledging our previous Order Denying Mandamus), and we VACATE appellants’ sentences and REMAND for resentencing.