Confirmed: the Government Hid–and Is Still Hiding–Manssor Arbabsiar’s First Docket

I first raised questions of why the government had charged Manssor Arbabsiar–the Scary Iran Plotter–with an amended complaint almost two weeks ago. As I noted then, the obvious existence of an earlier sealed complaint might suggest the possibility that Arbabsiar was charged with something entirely different than the murder-for-hire charges he got charged with on October 11.

First (and this is what got me looking at the docket in the first place), the complaint is an amended complaint. That says there’s a previous complaint. But that complaint is not in the docket. Not only is it not in the docket, but the docket starts with the arrest on September 29 (notice the docket lists his arrest twice, on both September 29 and October 11), but the numbering starts with the amended complaint (normally, even if there were a sealed original complaint, it would be incorporated within the numbering, such that the docket might start with the amended complaint but start with number 8 or something).

Two things might explain this. First, that there was an earlier unrelated complaint–say on drug charges, but the charges are tied closely enough to this op such that this counts as an amended complaint. Alternately, that Arbabsiar was charged with a bunch of things when he was arrested on September 29, but then, after at least 12 days of cooperation (during which he waived Miranda rights each day), he was charged with something else and the new complaint incorporated Ali Gholam Shakuri’s involvement, based entirely on Arbabsiar’s confession and Shakuri’s coded conversations with Arbabsiar while the latter was in US custody. [emphasis original]

If Arbabsiar were originally charged with something different than he was charged with on October 11–for example, if he were charged with drug charges that might put him away for hard time–it might explain why he waived Miranda rights for 12 days in a row, when he had, on 5 different occasions in his past, hired lawyers to represent him when he got in legal trouble.

Well, this filing not only confirms that an earlier complaint exists–the earlier complaint is dated September 28–but it confirms my suspicion the complaint is in an different docket that is entirely sealed.

On September 28, 2011, Magistrate Judge James C. Francis IV authorized a complaint bearing docket number 11 Mag. 2534 (“Sealed Complaint”), charging the above-listed defendant. The Sealed Complaint is attached hereto as Exhibit A.

On October 11, 2011, Magistrate Judge Michael H. Dolinger authorized an Amended Complaint (11 Mag. 2617) charging the defendant and Gholam Shakuri (“Amended Complaint”). By order of the Honorable Loretta A. Preska, dated October 11, 2011, the Sealed Complaint was ordered to remain sealed. On October 11, 2011, the defendant was presented on only the Amended Complaint.

The Government respectfully requests that the Court enter a limited unsealing order permitting the Government to produce the Sealed Complaint in redacted form to defense counsel as part of the discovery process. The Sealed Complaint would otherwise remain sealed.

First, compare the docket numbers:

First Complaint: 11-mg-2534

Amended Complaint: 11-mg-2617

Criminal Indictment: 11-cr-897

These are three entirely different dockets.

A search for criminal magistrate docket 11-2534 returns nothing. Which means the docket–the entire docket–is and remains sealed.

This increases the likelihood that the first complaint charges entirely different charges–such as opium charges–than the amended complaint does.

Indeed, the language of this letter appears to suggest that only Arbabsiar was charged in the first complaint. Even if this earlier complaint pertained to murder-for-hire charges, this might make sense–as I have pointed out, most of the current charges are conspiracy charges that would involve at least two defendants. But the letter suggests–by stating only that “the defendant was presented on only the Amended Complaint”–that there may be charges unique to Arbabsiar, completely unrelated charges that hang over him still–that weren’t charged because of his 12-day cooperation to implicate Shakuri.

And here’s the kicker. The government isn’t even telling Arbabsiar’s defense counsel all of what was in that first complaint. They are asking that she receive the complaint in redacted form.

So not only are they hiding the original basis of his arrest from us–US citizens and the world community, to whom the government claimed this is an international incident. But they’re hiding parts of this earlier complaint even from the public defender tasked to actually represent this guy.

10 replies
  1. MadDog says:

    Though it may be nothing at all, I noticed that the latest filing has a CC: for a Chief Magistrate Judge George A. Yanthis out of White Plains, New York.

    It may be that Judge Yanthis was CC:’d because he is in overall “charge” of the Magistrate judges as the Chief Magistrate judge just as Judge Preska would be in overall charge of the District judges as Chief District judge.

    Otherwise, the White Plains location doesn’t seem to fit into any part of the scheme.

  2. emptywheel says:

    @MadDog: I assumed that he was the guy who signed the first complaint. But I hadn’t thought about the WP address, which I agree is interesting.

  3. Mary says:

    Maybe they’ll do a gitmo and also advise the defendant that he’s in violation of law if HE discusses the redacted portions with his lawyer and tries to fill in the blanks.

    You know Magistrate Judges aren’t real Article III judges – they have limits on what they can and can’t do and they don’t go through advice and consent or Exec branch nomination. Around here, we don’t have a super crowded docket and most magistrates work with one particular District Court Article III judge – in a bigger jurisdiction like NY, that may not be the case, but that’s part of what caught my eye. The original complaint going to one magistrate, the AMENDED complaint suddenly going to a completely different magistrate, and a Dist Ct judge getting invovled right away on the sealing order. The litigators can have a better input, but it’s a bit odd to switch dockets and magistrates for a amendment to an existing complaint.

  4. bmaz says:

    @Mary: It is VERY odd. It was, however, not just any district judge that did the sealing, it was Chief Judge Preska. You would certainly expect it to be the chief judge on something like this, and it was. But sealing one whole docket up and then filing an “amended complaint” in another? On what is clearly the same arrest?? Never seen that before.

  5. MadDog says:

    @bmaz: @Mary: In response to both bmaz and Mary, I was thinking that the reason for another different Magistrate Judge might have been the unavailability of the first one – Judge Francis due to his case load or time of day, etc.

    As to the District Judge doing the sealing of the original Magistrate Judge’s complaint, I was thinking that given the above situation I decribed, one Magistrate Judge was in no position of authority to seal the complaint from another Magistrate Judge, and since all Magistrate Judges work for District Judges, it therefore fell upon the Chief District Judge Preska’s authority to seal the complaint from the original Magistrate Judge.

    It makes sense to me, but what do I know. *g*

  6. emptywheel says:

    @bmaz: Well, one of the mysteries is best explained by the conclusion that they’re very stupid.

    I honestly believe they thought no one would think to look for what the complaint amended.

    And lo and behold, they were … almost … right!

  7. earlofhuntingdon says:

    Credible analysis. But if the defendant promptly hired a lawyer five times in the past, why not do so when he was arrested/detained in connection with the original complaint? That would have been routine, regardless of other charges the govt. threatened him with.

    The most likely reason would be that the govt. offered some sort of immunity, however broadly or narrowly described, in order to get him to play ball on the charges in the amended complaint that, frankly, the govt was still putting together.

    Even that doesn’t smell right, since this defendant would have known he needed a lawyer to interpret how credible was his jeopardy and how meaningful the govt’s offer of immunity in exchange for cooperation.

    As you point out, the only thing we know for sure is that this case neither looks right nor smell right.

  8. Mary says:

    @earlofhuntingdon: Or add in the possibility that he was already working for a different agency in government. Or that gov didn’t so much offer a deal as offer not to send him to Saudi Arabia for them to hand the investigation. Or – – I can think of lots of things that could have happened, but all would have involved something really unique going on. Par is going to be asking for his lawyer.

  9. klynn says:

    And here’s the kicker. The government isn’t even telling Arbabsiar’s defense counsel all of what was in that first complaint. They are asking that she receive the complaint in redacted form.

    So not only are they hiding the original basis of his arrest from us–US citizens and the world community, to whom the government claimed this is an international incident. But they’re hiding parts of this earlier complaint even from the public defender tasked to actually represent this guy.

    Wow. After reading that post portion, I forgot what country I live in.

    bmaz and Mary, your observations on the “oddities” would make a great post.

  10. earlofhuntingdon says:

    @Mary: Threatening to send a criminal suspect outside of the US to a country known to torture on our behalf, and threatening that that country will torture, erm, use enhanced interrogation techniques to elicit information for us, is itself a criminal act. I’m sure our Mr. Constitutional Lawyer President, who, like Tony Blair, never lies and regards the rule of law as sacrosanct, is even now asking his venerable DoJ what it had/has in mind. It’s not like he or it would use a criminal complaint primarily for political purposes.

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