In the United States Court of Appeals for the Second Circuit

AUGUST TERM 2019

No. 18-943-cr

UNITED STATES OF AMERICA, Appellee,

v.

MUHANAD MAHMOUD AL FAREKH, Defendant-Appellant,

On Appeal from the United States District Court for the Eastern District of New York

ARGUED: DECEMBER 12, 2019 DECIDED: APRIL 16, 2020

Before: CABRANES, LOHIER, Circuit Judges, and REISS, Judge. *

Judge Christina Reiss, of the United States District Court for the District of * Vermont, sitting by designation. Defendant-Appellant Muhanad Mahmoud Al-Farekh (“Al- Farekh”), a U.S. citizen who traveled to Pakistan to join al-Qaeda and wage violent jihad against the United States, appeals from a judgment of the U.S. District Court for the Eastern District of New York (Brian M. Cogan, Judge) convicting him, following a jury trial, of, among other things, using explosives, conspiring to murder U.S. nationals, conspiring to use a weapon of mass destruction, conspiring to bomb a U.S. government facility, and providing material support to terrorists.

On appeal, Al-Farekh raises a number of challenges. We address three of those challenges here: (1) whether a district court abuses its discretion where it denies a defense counsel with the appropriate security clearance access to motions filed by the Government ex parte pursuant to section 4 of the Classified Information Procedures Act (“CIPA”); (2) whether a custodial interrogation that takes place overseas over a period of several weeks and involves the display of hundreds of photographs as part of a foreign country’s counterterrorism investigation is unduly suggestive, thereby rendering inadmissible an out-of-court photo identification of the defendant; and (3) whether a district court abuses its discretion when it limits the cross-examination of a fingerprint examiner to preclude references to a fingerprint misidentification in a wholly unrelated case—i.e., the Brandon Mayfield incident.

We answer all three questions in the negative. Specifically, we hold that, under the circumstances presented in this case, the District

2 Court did not err in adjudicating the Government’s CIPA motions ex parte and in camera, admitting the out-of-court photo identification of Al-Farekh, and limiting the cross-examination of the Government’s fingerprint examiner. Accordingly, the judgment of the District Court is AFFIRMED.

RICHARD M. TUCKER, Assistant United States Attorney (David C. James, Douglas M. Pravda, Saritha Komatireddy, Assistant United States Attorneys; Alicia Cook, Trial Attorney, Counterterrorism Section, United States Department of Justice, Washington, D.C., on the brief), for Richard P. Donoghue, United States Attorney, Eastern District of New York, Brooklyn, NY, for Appellee.

LAWRENCE M. STERN (Robert J. Boyle, on the brief), New York, NY, for Defendant-Appellant.

JOSÉ A. CABRANES, Circuit Judge:

Defendant-Appellant Muhanad Mahmoud Al-Farekh (“Al- Farekh”) is a U.S. citizen who traveled to Pakistan in 2007 to join al- Qaeda. He became a leader in the terrorist organization and waged violent jihad against the United States and its allies in the Middle East. As a member of al-Qaeda, Al-Farekh conspired to