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Mir Aimal KASI

 
 
 
 
 

 

 

 

 


A.K.A.: "Kansi"
 
Classification: Murderer
Characteristics: Rage over American policy in the Middle East
Number of victims: 2
Date of murder: January 25, 1993
Date of arrest: June 15, 1997
Date of birth: February 10, 1964
Victims profile: Frank Darling, 28, and Lansing Bennett, 66 (CIA employees)
Method of murder: Shooting (AK-47)
Location: Fairfax County, Virginia, USA
Status: Executed by lethal injection in Virginia on November 14, 2002
 
 

 

Supreme Court of Virginia

 

opinion 980797-080798

 
 

 
 

Summary:

On January 25, 1993, Kasi, also known in Pakistan as Kansi, parked his pickup truck near CIA headquarters in Langley, Virginia, during the morning rush hour, picked up an AK-47 and began methodically shooting into cars at a stoplight.

Two people were killed and three wounded before he got back into his truck and left the scene unhindered. CIA employees Frank Darling, 28, and Lansing Bennett, 66 died.

Three other people, Nicholas Starr, Calvin Morgan, and Stephen Williams, two who worked with the CIA and a telephone company employee, were wounded in Kasi's rampage. He fired 11 bullets into five cars.

He flew to Pakistan the next day but was arrested 4 years later, convicted and sentenced to die.

Final Meal:

Fried rice, bananas, boiled eggs and wheat bread.

Final Words:

"There is no God but Allah."

ClarkProsecutor.org


Pakistani Executed for CIA Shootings

By Frank Green - Reuters News

November 15, 2002

JARRATT, Virginia (Reuters) - Mir Aimal Kasi, a Pakistani who killed two CIA employees in 1993 in a rage over American policy in the Middle East, was executed by lethal injection on Thursday, in a case that sparked protests in his homeland and fears of retaliation against U.S. interests.

Kasi, 38, was pronounced dead at 9:07 p.m. EST (0207 GMT) at the Greensville Correctional Center in southeast Virginia, said Larry Traylor, spokesman for the Virginia Department of Corrections.

Kasi looked sad as he entered the death chamber, witnesses said. Kasi's spiritual adviser Dr. Miah Muhammed Saeed, president of the Islamic Center in northern Virginia, accompanied him into the death chamber.

The two men appeared to be praying quietly but continuously until Kasi's death. His last words were, "There is no God but Allah," said Traylor.

On January 25, 1993, Kasi, also known in Pakistan as Kansi, parked his pickup truck near CIA headquarters in Langley, Virginia, during the morning rush hour, picked up an AK-47 and began methodically shooting into cars at a stoplight.

Two people were killed and three wounded before he got back into his truck and left the scene unhindered. He flew to Pakistan the next day but was arrested in 1997, convicted and sentenced to die.

The U.S. State Department last week issued a warning to Americans abroad. Four Americans were killed in Pakistan after Kasi's 1997 conviction, and threats were made in Pakistan in recent days to harm Americans if Kasi was executed.

But Kasi, who was not believed to have had any links with terrorist organizations, let it be known through his lawyers that he "does not want anybody hurt in his name or as a result of his execution." As a precaution, however, the Virginia State Police said heightened security was provided at the prison and at the state capitol in Richmond.


Angry at U.S. treatment of muslims

An FBI agent testified that Kasi confessed he wanted to punish the U.S. government for bombing Iraq, for what he saw as its involvement in the killing of Palestinians and because the CIA was too deeply involved in the internal affairs of Muslim countries. Protesters in Pakistan said Kasi's actions were understandable. "Aimal is not a terrorist," tribal elder Ibrahim Kansi told demonstrators. "His action was a reaction to what was happening to Muslims in Chechnya and Palestine." The U.S. Supreme Court turned down Kasi's latest appeal Thursday. And Virginia Gov. Mark Warner denied a clemency request from Kasi's stepmother and the Pakistani embassy.

He was sentenced to die for the killings of CIA employees Frank Darling, 28, and Lansing Bennett, 66. Three other people, two with the CIA and a telephone company employee, were wounded in Kasi's rampage. He fired 11 bullets into five cars.

Darling's father-in-law, Richard Becker, whose daughter was in the car when her husband was murdered, issued a statement on behalf of his family. "The justice system of the United States and the State of Virginia performed and have been heard.

On Thursday, we will spend time in prayer for Kasi, that God will have mercy on his soul, for his family, that there be no terrorism reprisal, and for world peace," it said. CIA Director George Tenet said in a statement: "Today, our thoughts are with our two colleagues who were murdered on January 25, 1993, as well as the three others who were wounded that day. They and their loved ones will always be part of our agency family. They will remain in our thoughts and prayers long after today."

Protest in Pakista

About 150 members of Kasi's tribe in Pakistan marched through the streets of Kasi's hometown of Quetta, not far from the border with Afghanistan, chanting "Aimal is our hero."

The demonstrators also burned a U.S. flag. Other activists protested in the central town of Multan and called for the sentence to be commuted to life imprisonment. Iqbal Jafree, a Pakistani lawyer who had attempted to assist in the post-trial appeals, said Kasi's family had picked out a grave for Kasi in his hometown of Quetta. Defence witnesses contended Kasi suffered from brain damage and mental illness, and should have received life in prison instead of the death sentence.

Kasi had been living in Reston, Virginia. He flew to Pakistan the day after the shootings and disappeared for four years. Authorities said he spent most of that time in Afghanistan, hiding in and around Kandahar, which later emerged as a stronghold of the militant Taliban movement linked to Osama bin Laden and his al Qaeda network.

The FBI arrested Kasi in his hotel room in central Pakistan on June 15, 1997, and brought him to the United States for trial. Kasi's brother, Naseebullah Khan, told Reuters that Kasi had called home on Thursday. "He asked his mother to have courage," Khan said. "He told her to give his wishes to the motherland and to the people of Pakistan and asked them to pray for him."

Kasi requested a last meal of fried rice, bananas, boiled eggs and wheat bread. He was the 4th person executed in Virginia this year and the 87th executed in Virginia since the death penalty was allowed to resume by the U.S. Supreme Court in 1976.


Virginians for Alternatives to the Death Penalty

Mir Aimal Kasi - On January 25, 1993, Mir Aimal Kasi killed CIA employees Frank Darling and Lansing Bennett outside CIA headquarters in Fairfax, Virginia. Kasi fled to and was apprehended by FBI agents in Pakistan. He thereafter confessed to the agents that he was the gunman and was tried for capital murder and sentenced to death.

Kasi appealed ninety-one issues before the Supreme Court of Virginia, all of which were denied. One of Kasi's claims was that the treaty between the United States and the United Kingdom (which was Pakistan's colonial sovereign) should have applied to his extradition from Pakistan to United States.

That treaty says that extradition is to be carried out according to the law of the country from which the prosecution seeks to extradite the defendant. Because the Supreme Court of Virginia and United States Supreme Court concluded that Kasi was not extradited, but - their word choice - was instead "kidnapped" by the FBI, they found that there was no violation of the treaty because the treaty did not even apply to his case.

Kasi has been on death row since February 6, 1998.


Virginia Governor Warner Press Release

Statement by Governor Warner Regarding the Scheduled Execution of Mir Aimal Kasi:

RICHMOND — Governor Mark R. Warner today issued the following statement regarding the request for clemency in the case of Mir Aimal Kasi:

“In the morning of January 25, 1993, several vehicles were waiting at a traffic light on Route 123 near the main entrance to the headquarters of the Central Intelligence Agency.

Mir Aimal Kasi, armed with an AK-47 assault rifle, emerged from another vehicle stopped behind those waiting at the traffic light. Mr. Kasi began to walk among the vehicles, firing into them with his weapon. Within a few seconds, Mr. Kasi had murdered Frank Darling and Lansing Bennett, and wounded Nicholas Starr, Calvin Morgan, and Stephen Williams.

“After a ten-day trial in November 1997, a Fairfax County jury found Mr. Kasi guilty of capital murder of Mr. Darling, murder of Mr. Bennett, malicious woundings of Mr. Starr, Mr. Morgan, and Mr. Williams, and five charges of using a firearm in commission of the foregoing felonies. On February 4, 1998, the court sentenced Mr. Kasi to death.

“Mr. Kasi has admitted to the crimes for which he was convicted and shown absolutely no remorse for his actions. After a thorough review of Mr. Kasi’s petition for clemency and the judicial opinions regarding this case, I have concluded that the death penalty is appropriate in this instance. I will not intervene.”


ProDeathPenalty.com

In Fairfax, a judge has scheduled a Nov. 7 execution for a Pakistani who opened fire with an assault rifle outside CIA headquarters in 1993, killing 2 people and injuring 3. Mir Aimal Kasi's appeals were exhausted last month when the 4th U.S. Circuit Court of Appeals upheld his death sentence. Only the Supreme Court or Virginia Gov. Mark R. Warner can intervene.

Kasi went on a shooting rampage outside the CIA headquarters in 1993, killing two and wounding three CIA employees. Kasi killed Frank A. Darling, 28, an officer in covert operations, and Lansing H. Bennett, 66, an intelligence analyst, on Jan. 25, 1993.

Fairfax County Commonwealth's Attorney Robert F. Horan said, "If he wasn't a terrorist, I've got to get a new definition."

Four Americans were killed in Pakistan in apparent response to Kasi's 1997 trial. "I've tried an awful lot of killers in my life, and I think he's the only one I've run into that is absolutely proud of what he did. You get a lot of killers who don't feel all that bad about what they did, but he's proud of it," said Horan.

At Kasi's trial, an FBI agent testified that Kasi confessed he wanted to punish the U.S. government for bombing Iraq, for what he saw as its involvement in the killing of Palestinians, and because the CIA was too deeply involved in the internal affairs of Muslim countries. After the slayings, he fled the country and spent most of the next 4 and a half years traveling in Afghanistan. He was apprehended in a hotel when visiting Pakistan. The victims were slain with an AK-47 assault rifle as they sat in their cars waiting at a stoplight outside CIA headquarters in McLean on Jan. 25, 1993.

According to the Web site for Virginians for Alternatives to the Death Penalty, Kasi is looking for pen pals. In soliciting pen pals, Kasi said he is interested in a pen-pal friendship, his hobby is reading books, he speaks English and his native language, Pashto, and that he already is corresponding with "a few old friends." He said he has no religious preference, but in 1997 he told the FBI he did not shoot any women because it was against his Muslim religion.

While there was no evidence Kasi had any assistance, the judge ordered the jury sequestered and Kasi was convicted after a 2-week trial that cost about $1.5 million and was held amid unprecedented security at Fairfax Court House. According to the Virginia Supreme Court, in one of his appeals, Kasi contended he should not be sentenced to death because his was a political crime and that his death sentence should be commuted "to avoid possible violent acts of reprisal."

On Sept. 11, the day of the terrorist attacks against the World Trade Tower and Pentagon, a federal magistrate judge in Norfolk recommended that Kasi's appeal be rejected.

One juror spoke to the press after the penalty phase of the trial. "I was literally shaking," the juror said of the trial's penalty deliberations. "I found it probably the hardest thing I have ever had to do because you are practically wielding the sword." The discussion over whether to convict Kasi was much less emotional, the juror said. And he said the case left him feeling sorry both for Kasi's victims and his family. "They're not terrorists," he said of relatives of Kasi who sat through the 2-week trial in Fairfax County Circuit Court. "They're victims, just like the other side."

In the sentencing deliberations, jurors methodically laid out the evidence for and against execution. But the 6 men and 6 women discovered that they couldn't vote right away, the juror said. He then suggested that they talk about their feelings toward the death penalty. "Everybody opened up," he said. "...A lot of people had the same emotions as me. They didn't like taking human life. We didn't want to treat terrorists the same as they treat us." The talk broke the stalemate, yielding a 10-2 vote for the death penalty instead of a sentence of life in prison.

Eventually, the majority persuaded the 2 holdouts to focus on the crime, not the defendant, the juror said. "A couple of people said you can't really think of him as he looks now, pathetic," the juror said. "The defense had made him look like a lost soul. You can't approach him with those eyes, or you can't kill him."

Circuit Judge J. Howe Brown Jr., who will formally sentence Kasi on Jan. 23, has sealed the names of the jurors who heard the case. Brown sequestered the jury 2 days after Kasi was convicted, following the ambush slayings of 4 American oil company workers in Karachi. None of the jurors knew of the attack until after the trial ended, the juror told the newspaper. He said they believed they were sequestered to shield them from media coverage of the trial. Jurors had asked the judge on the day Kasi was convicted if any threats had been made, and most were reassured when Brown said no, the juror said.


National Coalition to Abolish the Death Penalty

Mir Aimal Kasi - Scheduled Execution Date and Time: 11/14/02 9:00 PM EST

Mir Aimal Kasi – a foreign national from Pakistan – is scheduled to be executed by the state of Virginia Nov. 14.

On Jan. 25, 1993, Kasi opened fire with an assault rifle outside CIA headquarters, killing two of the agency’s employees and wounding three others. Activists around the world have been campaigning vigorously to stop this execution, but so far, to no avail.

The Kasi case represents an ideal opportunity for the United States to honor its commitments to human rights and peaceful conflict resolution in the international community.

Kasi claimed his 1993 shooting spree resulted from frustration over U.S. policies in the Middle East – namely the air attacks on Iraq and the killings of Pakistanians by U.S. components. However, instead of working to improve U.S. foreign policy, Kasi’s retaliation furthered the world’s prevalent cycle of cross-cultural violence; the state of Virginia’s execution will only do the same. A commutation of Kasi’s death sentence would demonstrate this country’s respect for international law, concern for human rights, and objective for a peaceful future in the Middle East.

Aside from the regular political ramifications of executing foreign nationals, this particular death sentence has several procedural flaws. After indicting Kasi shortly after the crime, the United States issued a formal extradition request to Pakistan in April 1993 (citing the 1931 Extradition Treaty between the United States and the United Kingdom – Pakistan’s former colonial sovereign – as the authority for the request).

Meanwhile, the fugitive allegedly traveled around Afghanistan for several years before returning to his native country. FBI agents abducted him in a hotel room there at four o’clock on the morning of June 15, 1997; after spending two days at a secret location in Pakistan, they returned Kasi to the United States.

Defense lawyers have maintained that the trial court did not have jurisdiction over the foreign national because his abduction from Pakistan was a direct violation of international law – specifically the legal prohibition on arbitrary detention.

The courts ruled that nothing in the extradition treaty necessarily prohibits such forcible abductions and detentions, and cited the U.S. Supreme Court’s 1992 Alvarez-Machain decision. In that ruling, the high court stated that the forcible abduction of Humberto Alvarez-Machain in Mexico may have violated “general international law principles,” but did not violate the U.S.-Mexico extradition treaty, which “says nothing about either country refraining from forcibly abducting people from the other’s territory.” Such language not only sets a dangerous precedent for the future, but also raises doubts about the principles at stake in Kasi’s abduction from Pakistan. As a world leader, the U.S. should make a serious effort to abide by “general international law principles,” instead of interpreting individual treaties as a way of avoiding them.

Kasi’s lawyers also expressed concerns regarding the defendant’s right to contact consular officers under the Vienna Convention on Consular Relations. In its appeal to the Supreme Court of Virginia, the defense argued that the “record shows that at no time did the federal agents advise Kasi of his right to consult with a Pakistani diplomat.” Such a mistake, they claimed, warrants cause for the court to reverse Kasi’s death sentence.

Above all else, a human life is at stake, and the reputation of the United States as a nation aiming to protect and defend human rights is hanging in the balance. Please write the state of Virginia and request clemency for Mir Aimal Kasi.


Kasi Dies for CIA Killings

By Frank Green and Rex Springston - Richmond Times-Dispatch

November 15, 2002

JARRATT - Praying quietly until the end, Mir Aimal Kasi was executed by injection last night for the 1993 slayings of two CIA employees.

In his last statement, Kasi said, "There is no God but Allah," according to Larry Traylor, spokesman for the Virginia Department of Corrections. Then, Kasi chanted quietly, Traylor said. He was pronounced dead at 9:07 p.m.

Media witnesses said Kasi prayed with a Muslim spiritual adviser for his last hour. As he lay strapped on the gurney, Kasi gestured with his right hand, witnesses said. "My personal impression was a peace sign" directed at the witnesses, said Guy Taylor, of The Washington Times. "He appeared almost saddened." Another media witness, reporter Chris Gordon of the NBC affiliate in Washington, said he saw something "like a twitch" but wasn't sure it was peace sign. Describing the death, Gordon said, "He appeared to go to sleep."

Though not linked to any extremist organizations, Kasi, 38, a Pakistani national, gave the United States a taste of terrorism years before the events of Sept. 11, 2001. He was sentenced to death for the murders of Frank Darling, 28, and Lansing Bennett, 66. They were killed with an AK-47 assault rifle as they sat in their cars at a stoplight outside CIA headquarters in McLean on Jan. 25, 1993. Three other people, two with the CIA and a telephone company employee, were wounded. Kasi fired a total of 11 bullets into five cars.

An FBI agent testified that Kasi confessed he wanted to punish the U.S. government for bombing Iraq, for what he saw as its involvement in the killing of Palestinians and because the CIA was too deeply involved in the internal affairs of Muslim countries.

The U.S. State Department issued an advisory for Americans abroad last week because of the pending execution. Threats had been made in recent days in Pakistan to harm Americans should Kasi be executed. Four Americans were killed in Pakistan during his 1997 trial. In Kasi's hometown of Quetta, Pakistan, paramilitary troops stood guard as supporters rallied yesterday in protest of the execution, burning an American flag and calling for the United States to stop interfering in their country. However, a reporter from Pakistan who was covering the execution last night said Kasi is not widely perceived as a hero there. "He's not a hero. He's committed a crime," said Azim M. Miam, United Nations bureau chief for the Jang Group of Newspapers.

Miam said there has been a great deal of interest in the case in Pakistan because there has been so much coverage in the American media. "In these days of globalization, CNN, ABC - they are beaming these things over there about Aimal Kasi."

More law enforcement vehicles were stationed near the Greensville Correctional Center entrance than usual for an execution, and corrections officers armed with shotguns and rifles stood watch. Kasi's execution also attracted far more media outlets than usual, as measured by the number of vehicles with satellite dishes in the prison's parking lot.

In Richmond, state and Capitol Police cruisers, with blue lights flashing, were positioned last night on East Franklin and North Eight and Ninth streets around the building that houses the Virginia Supreme Court and Virginia Court of Appeals. No threats had been received, said Lt. Robert Northern of the Virginia State Police. The extra security was merely precautionary "because of the unique nature of the person being executed."

Outside the prison, about 75 people held a candlelight vigil to protest the execution. They prayed for Kasi and his victims as they gathered in a circle under a nearly full moon on the cool night in the low 50s. "We're here because we don't believe you can end violence with violence," said Judith Shanholtz, a Henrico County resident.

The protesters carried signs bearing messages such as "Life is Sacred - Do Not Kill" and "Don't Kill For Me." Ann McBride, 57, a Fairfax County preschool teacher, said she has corresponded with Kasi for the last three years. "He's a great person. That's why I'm very sad," she said. "It's incredibly hard for me to see how people can choose to kill." Shanholtz and McBride acknowledged Kasi was guilty, but they said that didn't justify another killing.

The U.S. Supreme Court turned down Kasi's last appeal and request for a stay of execution yesterday afternoon. Then Virginia Gov. Mark R. Warner turned down a clemency request from Kasi's stepmother and the Pakistani Embassy. Warner, in rejecting Kasi's clemency petition, said the death penalty is appropriate in this case. "Mr. Kasi has admitted to the crimes for which he was convicted and shown absolutely no remorse for his actions," the governor said.

Judith Becker-Darling testified at Kasi's trial that she and her husband, Frank Darling, were driving to work, "And all of a sudden, I heard glass smash behind me. My husband looked in the rear view mirror and said right away, 'My God, I've been shot. Get down!'" Becker-Darling said she ducked beneath the dashboard as her husband struggled to maneuver their Volkswagen Jetta out of harm's way. She continued to hear what sounded liked balloons popping. "I picked my head up and I was looking down the barrel of a gun . . . my husband said again, 'Get down.'" She obeyed and heard more shots. "When I picked my head up, Frank was shot in the head." Kasi's real name is Aimal Khan Kasi, but he was charged and convicted as Mir Aimal Kasi. He was the fourth person executed in Virginia this year and the 87th since the death penalty was allowed to resume by the U.S. Supreme Court in 1976.


Aimal Kasi

The Washington Post

November 12, 2002

QUETTA, Pakistan — Two Middle East politicians have asked the United States to spare the life of convicted killer Aimal Kasi, saying such an act would help win the war on terrorism, a Pakistani newspaper reported Monday.

Mr. Kasi, 38, born in the dusty border town of Quetta, is scheduled to be executed Thursday by lethal injection in Virginia for gunning down two CIA employees as they sat in their cars outside agency headquarters. Virginia Gov. Mark R. Warner said yesterday he had received a clemency petition from Mr. Kasi, but will not comment on the case until court appeals are exhausted.

In Kasi's hometown, newspapers have published appeals for clemency and have asked the city's more than 1 million residents to "pray for Aimal Kasi that God save his life from execution." His family, friends and 1,000 Muslim clerics have also issued appeals. Two prominent local politicians, according to the newspaper story, said putting Kasi to death won't help the United States' relationship with Pakistan, a key ally in the fight against Osama bin Laden's al Qaeda network. "By forgiving one person the U.S. can win the hearts of millions of people in its war against terrorism," the Baluchistan Times quoted Sarwar Khan Kakar and Noor Jehan Panezai as saying in a joint statement. Mr. Kakar is secretary-general of the state branch of the party that supports Pakistani President Gen. Pervez Musharraf, the Quaid-e-Azam faction of the Pakistan Muslim League.


A Muslim Gets Even With the CIA

By Patricia Davis and Maria Glod - The Washington Post

November 15, 2002

FBI Special Agent Brad Garrett was not sure the man on the bed in the seedy hotel room in Pakistan really was Mir Aimal Kasi. He had a beard and was heavier than the gunman who had opened fire just outside CIA headquarters, killing two agency employees and wounding three other people.

"Turn him over," Garrett told the other agents, their guns drawn, as he straddled the man in the $3-a-night room at the Shalimar Hotel in Dera Ghazi Kahn. Garrett then took the man's left thumb and pressed it onto an ink pad. .Garrett had brought a photograph of Kasi's fingerprints in a bag. In the middle of the night, in that desolate, dusty town bordering Afghanistan, in 1997, the agent pulled out a magnifying glass and studied the prints. The four-and-a half-year international manhunt was finally over. "It's a match," Garrett said.

Kasi, 38, was scheduled to be executed Thursday night at the Greensville Correctional Center in Jarratt, Virginia. His death would end an odyssey that began Jan. 25, 1993, during morning rush hour in Langley, Virginia, when Kasi stepped out of his Izusu pickup truck, shouldered an AK-47 and began firing methodically at motorists waiting to turn in to CIA headquarters. .In the five years since Kasi was convicted in Fairfax County Circuit Court and sentenced to death, he exhausted his appeals. Only the Supreme Court or Governor Mark Warner of Virginia was left Thursday to intervene.

The State Department has warned that Kasi's execution could result in retaliation against Americans around the world. Protesters have taken to the streets in Pakistan, including hundreds of angry university students in Multan. .Many consider the threat very real. Kasi was hailed as a hero among some in Pakistan and Afghanistan after the shooting. A day after his conviction in 1997, four American oil executives were killed in Pakistan, and U.S. officials speculated at the time that the slayings were in retaliation for the trial.

Kasi has appealed to his supporters to refrain from any violent response, his attorney, Charles Burke, said. "He doesn't want any uproar or retaliation. He doesn't want anyone to do anything," Burke said. .But Kasi also says he has no regrets. "He stands by what he did and now knows he's got to pay the ultimate price," Garrett said. .The FBI and the CIA never found evidence that Kasi was linked to a terrorist organization. But his violent acts that day foreshadowed future terrorist attacks against the United States.

Like a suicide bomber, Kasi was willing to sacrifice his life to protest U.S. foreign policy, which he believed was hurting Muslims. ."So much of America was surprised by 9/11, but, in fact, the degree of animosity and hatred that has been mobilized in Third World countries had been growing," said Jerrold Post, a George Washington University professor who has studied the psychology of terrorism. "We're not just talking about Al Qaeda; we're talking about the climate of radical Islam." .

Harvey Kushner, a terrorism consultant at Long Island University, called Kasi the "perfect prototype of what we face in Al Qaeda. He's the guy who steps up to the plate." .During the plane ride to the United States, Kasi told Garrett he wanted to "teach a lesson" to the U.S. government. "He would have killed anyone at the gates of the CIA that day," said Fairfax County Commonwealth's Attorney Robert Horan Jr., who prosecuted Kasi. "He was getting even with the CIA for the way they treated the Muslim people of the world. He was, and I believe he is, proud of what he did, and I believe he'd do it again tomorrow morning if he had the chance." .

Kasi, who carried 150 rounds of ammunition that day, was aiming only at men - he believed killing women, who did not have any power in his country, would be wrong. He stopped firing only because there was no one left to shoot. .Kasi was able to climb back into his truck and continue down the road. He returned to his apartment, stuck the assault weapon in a green plastic bag, placed the bag under the sofa and grabbed something to eat at a McDonald's restaurant.

It was clear to Kasi from CNN news reports that the police had the wrong description of his vehicle and that no one had seen his license plate number. Nevertheless, he decided to spend the night at a Days Inn before catching a flight to Pakistan the next day. .A task force, led by Garrett, began combing through AK-47 purchases. An employee at one gun store recalled exchanging a customer's gun for an AK-47. The owner's name on the sales slip: Mir Aimal Kasi.

Kasi's roommate, who had reported him missing after the shootings, told the police that Kasi would get incensed watching CNN when he heard how Muslims were being treated. Kasi had said he was going to do "something big" at the White House, the Israeli Embassy or the CIA, but his roommate did not think much of it. The roommate let the police search the apartment, where they found the AK-47 under the couch. The ballistics matched, and the search began. .During the next four years, Garrett and other agents made frequent trips to Pakistan. Leads would evolve, then evaporate, in places as far away as Thailand. ."We literally followed up hundreds of leads that took us all over the globe," he said.

Finally, in the late spring of 1997, informants said agents could find Kasi in a hotel, the Shalimar, in Dera Ghazi Kahn. They produced recent photos and fingerprints. .At 4 a.m. June 15, wearing traditional Pakistani clothes over their jeans and weapons, they approached the hotel, which they were told would be unlocked. It wasn't. So they had no choice: They knocked. ."It was surreal," Garrett said. "It's dark. It's dusty. I felt like I was in a David Lynch movie. We're actually starting to sweat it." .On the trip home, Kasi did not resist when Garrett asked him about the shootings. He said he had done it because he was upset at how Muslims were treated by the CIA in their own countries, particularly Iraq. He hoped his actions would make a statement. ."He was very upfront about what he did. He didn't try to blame it on anyone. He didn't try to hide it," Horan said.

Americans urged to be vigilant .The U.S. Embassy in Islamabad and consulates in Peshawar, Lahore and Karachi will close early Friday following the scheduled execution in Virginia of Kasi, Agence France-Presse reported from Washington. The embassy said in a notice that Americans should continue to be wary of the threat of terrorist attacks in Pakistan, "especially in light of the scheduled November 14 execution in the State of Virginia of Mir Aimal Kasi."


CIA Shooter Kasi, Harbinger of Terror, Set to Die Tonight

U.S. Supreme Court, Virginina Governor Warner Deny Late Appeals,"

By Patricia Davis and Maria Glod - The Washington Post

November, 2002

FBI special agent Brad Garrett wasn't sure the man on the bed in the seedy hotel room in Pakistan really was Mir Aimal Kasi. He had a beard and was heavier than the gunman who had opened fire outside CIA headquarters, killing two agency employees and injuring three other people. "Turn him over," Garrett told the other agents, their guns drawn, as he straddled the man in the $3-a-night room at the Shalimar Hotel in Dera Ghazi Kahn. Garrett then took the man's left thumb and pressed it onto an ink pad. Garrett had brought a photograph of Kasi's fingerprints in a bag.

In the middle of the night, in a desolate, dusty town bordering Afghanistan, in 1997, the agent pulled out a magnifying glass and studied the prints. The 4-1/2-year international manhunt was finally over. "It's a match!" Garrett said.

The FBI and the CIA never found evidence that Kasi was linked to an organized terrorist organization. But his shocking, violent acts that day foreshadowed future terrorist acts against the United States here and abroad. Like a suicide bomber, Kasi was willing to sacrifice his life to protest U.S. foreign policy, which he believed was hurting Muslims worldwide. "So much of America was surprised by 9/11, but, in fact, the degree of animosity and hatred that has been mobilized in Third World countries had been growing," said Jerrold Post, a George Washington University professor who has studied the psychology of terrorism. "We're not just talking about al Qaeda; we're talking about the climate of radical Islam."

Harvey Kushner, a terrorism consultant at Long Island University, called Kasi the "perfect prototype of what we face in al Qaeda. He's the guy who steps up to the plate." During the plane ride to the United States, Kasi told Garrett he wanted to "teach a lesson" to the U.S. government. "He would have killed anyone at the gates of the CIA that day," said Fairfax County Commonwealth's Attorney Robert F. Horan Jr., who prosecuted Kasi. "He was getting even with the CIA for the way they treated the Muslim people of the world. He was, and I believe he is, proud of what he did, and I believe he'd do it again tomorrow morning if he had the chance."

Kasi has said as much in various media interviews over the past several days. He had agreed to speak to The Washington Post but backed out moments before the scheduled interview.

The U.S. State Department has warned that Kasi's execution could result in retaliation against Americans around the world. Protesters have taken to the streets in Pakistan, including hundreds of angry university students in Multan. Many consider the threat very real. Kasi was hailed as a hero among some in Pakistan and Afghanistan after the shooting. A day after his conviction in 1997, four American oil executives were killed in Pakistan, and U.S. officials speculated at the time that the slayings were in retaliation for the trial.

Kasi planned to spend much of what could be his last day praying, said Garrett, who has met regularly with Kasi on death row and was asked by the Pakistani native to attend his execution. Kasi has appealed to his supporters to refrain from any violent response, said his attorney, Charles R. Burke. "He doesn't want any uproar or retaliation. He doesn't want anyone to do anything," Burke said. But Kasi also says he has no regrets. "He stands by what he did and now knows he's got to pay the ultimate price," Garrett said.

It was bitterly cold Jan. 25, 1993, at the height of the morning rush, when Kasi stepped out of his truck in the left-turn lanes outside the CIA and began firing, the first shot piercing the rear window of a Volkswagen Golf. Judy Becker-Darling, sitting in the front passenger seat next to her husband, Frank Darling, heard the crash and thought another car had struck theirs. "Oh my God, somebody has a gun," Darling, 28, told his wife of only three months. "I've been shot."

As Darling urged his wife to hide under the dashboard, Kasi turned to another car trapped at the light and fatally shot Lansing Bennett, 66, a physician and CIA intelligence analyst. Kasi then walked between the double line of cars, shooting and wounding Calvin Morgan, 61, an engineer; Nicholas Starr, 60, a CIA analyst; and Stephen E. Williams, 48, an AT&T employee. Then Kasi returned to the Darlings' car and fired three more times, striking Frank Darling, a CIA employee who worked in covert operations, in the leg, groin and head. Out of the corner of her eye, Becker-Darling saw something rush past. She saw the gun, not Kasi. "I hope he runs out of bullets," she prayed.

Kasi, who carried 150 rounds of ammunition that day, was aiming only at men-he believed killing women, who did not have any power in his country, would be wrong. He stopped firing only because there was no one left to shoot. Kasi was surprised that he was able to climb back into his truck and continue down the road without having a shootout with police. When he got to Kirby Road, he turned right and headed for a park in McLean.

As law enforcement officials widened their search, Kasi was just five minutes away in the park, where he stayed for 90 minutes. No one seemed to be looking for him, so he returned to his Herndon apartment, stuck the assault weapon in a green plastic bag, placed the bag under the sofa and grabbed something to eat at McDonald's. It was clear to Kasi from CNN news reports that police had the wrong description of his vehicle and that no one had seen his license plate number. Nevertheless, he decided to spend the night at a Days Inn before catching a flight to Pakistan the next day.

A task force of Fairfax police and federal law enforcement officers, called "Langmur" for the Langley murders, tried to learn the identity of the gunman. Garrett, who arrived about 30 minutes after the shootings, was assigned to the case. On the theory that the gun was recently bought, the task force began combing through AK-47 purchases in Virginia and Maryland in the past year, Garrett said. There had been more than 1,600. An employee at a Chantilly gun store recalled exchanging a customer's gun for an AK-47. The owner's name on the sales slip: Mir Aimal Kasi.

Kasi's roommate, who had reported him missing after the shootings, told police that Kasi would get incensed watching CNN when he heard how Muslims were being treated. Kasi had said he was going to do "something big" at the White House, the Israeli Embassy or the CIA, but his roommate didn't think much of it.

The roommate let police search the apartment, where they found the AK-47 under the couch. Soon after, Garrett got a double 911 page: The ballistics matched, and the search began. A month after the CIA shootings came the first bombing of the World Trade Center. Authorities wanted to know whether Kasi was acting alone or was part of some bigger plan. "The investigators spent a lot of time trying to find out: Did he have an accomplice? Was he part of some movement? Was he part of some collection that had other violence in mind?" Horan recalled.

During the next four years, Garrett and other agents made frequent trips to Pakistan. Developing and corroborating sources was difficult. Leads would evolve, then evaporate, in places as far away as Thailand. "We literally followed up hundreds of leads that took us all over the globe," Garrett said. Finally, in the late spring of 1997, informants said agents could find Kasi in a hotel, the Shalimar, in Dera Ghazi Kahn. They produced recent photos and fingerprints. Garrett and the other FBI agents began to get excited.

The team of four, including two agents from the hostage rescue team, practiced room entries, parking one agent in the hallway, Garrett said. The first agent in the room would not be armed and would jump Kasi when he answered the door. The other two would clear the room of people or weapons. They were pumped-and concerned. "What if we end up killing him? Or killing the wrong person? Or one of us gets killed?" At 4 a.m. June 15, 1997, wearing traditional Pakistani clothes over their jeans and weapons, they approached the hotel, which they were told would be unlocked. It wasn't. So they had no choice: They knocked. "It was surreal," Garrett said. "It's dark. It's dusty. I felt like I was in a David Lynch movie. We're actually starting to sweat it."

On the trip home, Kasi did not resist when Garrett asked him about the shootings. He said he had done it because he was upset at how Muslims were treated by the CIA in their own countries, particularly Iraq. He hoped his actions would make a statement. "He was very upfront about what he did. He didn't try to blame it on anyone. He didn't try to hide it," Horan said. Back home, Kasi became a hero, Garrett said.

To Garrett, who was involved in the arrest of Ramzi Yusef, the mastermind of the 1993 World Trade Center bombing, Kasi's story sounded similar to Yusef's: He thought that if he caused enough havoc, it would change U.S. policies. "It was almost illogic logic," Garrett said. "It wasn't personal. It wasn't like hating individuals. It was more institutional."

Garrett made the first of many visits to Kasi on death row about three months after his November 1997 conviction. "Why haven't you executed me yet?" Kasi asked. The agent explained that it takes a few years in the United States. After the Sept. 11, 2001, terrorist attacks, Kasi told Garrett that he did not approve of the attack on the World Trade Center because innocent civilians were killed. He understood, however, the attack on the Pentagon, the symbol of government might.

Kushner, the terrorism expert, said that even though Kasi acted alone, he was the opening salvo for Muslim fundamentalists. "He was one of the dots that should have been connected before 9/11," Kushner said. "He was a serious player even though they were never able to link him to any specific group." Thomas J. Badey, a political scientist at Randolph Macon College, said the students' protests in Pakistan over Kasi's pending execution is a sign that the fervor isn't nearly over. "It appears that Kasi's fate is becoming a rallying cry in parts of Pakistan," Badey said. "He's the one foreign Islamic terrorist prosecuted in the United States who has been sentenced to death. The question is how effective is that as a tool in fighting terror, because he becomes a martyr for the cause."

Kasi's victims, like Kasi, hope there is no retaliation. "We will spend time in prayer for Kasi, that God will have mercy on his soul, for his family, that there be no terrorism reprisal, and for world peace," Becker-Darling's family said in a statement.


Family Says Gunman at CIA Loved America

CNN.com

November 11, 1997

FAIRFAX, Virginia (CNN) -- A Pakistani man convicted of killing two men in a shooting spree outside CIA headquarters once professed a love for this country, his uncle testified Tuesday. "He always say that 'I like America, I love America and I want to go there,'" Amanullah Kasi said at a sentencing hearing for his nephew, Mir Aimal Kasi.

Kasi was convicted Monday of one count of capital murder in the death of Frank Darling, 28, and one count of first-degree murder in the death of Lansing Bennett, 66. The two men were shot in their cars while waiting in the morning traffic outside CIA headquarters in Langley, Virginia, on January 25, 1993.

The attack left three other people wounded. Prosecutors -- who claim Kasi was out to avenge the bombing of Iraq and what he though was American meddling in Muslim countries -- are asking for the death penalty.

Kasi's uncle testified that his nephew was not politically active and had no hatred for the United States. And one of Kasi's older brothers, Mir Weis Kasi, said Kasi was an apolitical loner who talked to himself as a teen-ager. Three teachers from his hometown elementary school in Quetta, Pakistan, also testified, describing him as a solemn boy and a poor math student.

One teacher, Rahel Ernest Nathaniel, wept as she looked at a class photo of Kasi as a boy. "That's Aimal," she said, using the name Kasi's friends and family use for him. "He was quiet, very shy. Not a talkative child."

Jurors heard Tuesday from the widow of one of the two victims. Judy Becker Darling, 38, said that after her husband's murder, she was unable to live in the house she shared with him, and that she couldn't return to her job at the CIA, where she had worked 13 years.

Mrs. Darling was in the car with her husband when he was gunned down, and in tears Tuesday she told the jury she couldn't eat, sleep or function normally for almost two years after he was killed. "I just kept telling (my parents) I could smell blood and death," she said. "I just didn't want to be here anymore. I wanted to be with him."

Jurors already recommended to the judge that Kasi receive maximum sentences: life in prison for the murder of Bennett, 20 years each for three counts of malicious wounding and 18 years for five firearms charges. They also recommended that he be fined $400,000. The jury didn't begin considering the capital murder count in Darling's death until Tuesday because death penalty counts require a separate sentencing hearing.

The defense plans to call medical and psychological experts to testify about Kasi's mental condition as his sentencing hearing continues. The prosecution says it will counter with its own medical experts. Both sides agree the case is likely to go to the jury before the end of this week.


Virginia Supreme Court

MIR AIMAL KASI
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Record Nos. 980797  980798

November 6, 1998

OPINION BY JUSTICE A. CHRISTIAN COMPTON

J. Howe Brown, Judge

On Monday, January 25, 1993, near 8:00 a.m., a number of automobiles were stopped in two north-bound, left-turn lanes on Route 123 in Fairfax County at the main entrance to the headquarters of the Central Intelligence Agency (CIA). The vehicle operators had stopped for a red traffic light and were waiting to turn into the entrance.

At the same time, a lone gunman emerged from another vehicle, which he had stopped behind the automobiles. The gunman, armed with an AK-47 assault rifle, proceeded to move among the automobiles firing the weapon into them. Within a few seconds, Frank Darling and Lansing Bennett were killed and Nicholas Starr, Calvin Morgan, and Stephen Williams were wounded by the gunshots. All the victims were CIA employees and were operators of separate automobiles. The gunman, later identified as defendant Mir Aimal Kasi, also known as Mir Aimal Kansi, fled the scene.

At this time, defendant, a native of Pakistan, was residing in an apartment in Reston with a friend, Zahed Mir. Defendant was employed as a driver for a local courier service and was familiar with the area surrounding the CIA entrance. The day after the shootings, defendant returned to Pakistan. Two days later, Mir reported to the police that defendant was a "missing person."

On February 8, 1993, the police searched Mir's apartment and discovered the weapon used in the shootings as well as other property of defendant. Defendant had purchased the weapon in Fairfax County three days prior to commission of the crimes.

On February 16, 1993, defendant was indicted for the following offenses arising from the events of January 25th: Capital murder of Darling as part of the same act that killed Bennett, Code • 18.2-31(7); murder of Bennett, Code • 18.2-32; malicious woundings of Starr, Morgan, and Williams, Code • 18.2- 51; and five charges of using a firearm in commission of the foregoing felonies, Code • 18.2-53.1.

Nearly four and one-half years later, on June 15, 1997, agents of the Federal Bureau of Investigation (FBI) apprehended defendant in a hotel room in Pakistan. Defendant had been travelling in Afghanistan during the entire period, except for brief visits to Pakistan.

On June 17, 1997, defendant was flown from Pakistan to Fairfax County in the custody of FBI agents. During the flight, after signing a written rights waiver form, defendant gave an oral and written confession of the crimes to FBI agent Bradley J. Garrett.

Following 15 pretrial hearings, defendant was tried by a single jury during ten days in November 1997 upon his plea of not guilty to the indictments. The jury found defendant guilty of all charges and, during the second phase of the bifurcated capital proceeding, fixed defendant's punishment at death based upon the vileness predicate of the capital murder sentencing statute, Code • 19.2-264.4.

On February 4, 1998, after three post-trial hearings, during one of which the trial court considered a probation officer's report, the court sentenced defendant to death for the capital murder. Also, the court sentenced defendant to the following punishment in accord with the jury's verdict: For the first- degree murder of Bennett, life imprisonment and a $100,000 fine; for each of the malicious woundings, 20 years' imprisonment and a $100,000 fine; and for the firearms charges, two years in prison for one charge and four years in prison for each of the remaining four charges.

The death sentence is before us for automatic review under former Code • 17-110.1(A) (now • 17.1-313(A)), see Rule 5:22, and we have consolidated this review with defendant's appeal of the capital murder conviction. Former Code • 17-110.1(F) (now • 17.1-313(F)). In addition, by order entered April 23, 1998, we certified from the Court of Appeals of Virginia to this Court the record in the noncapital convictions (Record No. 980798). That record consists only of three notices of appeal from the conviction order. No other effort has been made to perfect the noncapital appeals; therefore, those convictions will be affirmed and we shall not address them further.

In the capital murder appeal, we will consider, as required by statute, not only the trial errors enumerated by the defendant but also whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and whether the sentence is disproportionate to the penalty imposed in similar cases. Former Code • 17-110.1(C) (now • 17.1- 313(C)).

* * * *

Near 4:00 a.m. on June 15, 1997, Agent Garrett and three other armed FBI agents, dressed in "native clothing," apprehended defendant in a hotel room in Pakistan. Defendant responded to a knock on the room's door and the agents rushed inside. Defendant, who has "a master's degree in English," immediately began screaming in a foreign language and refused to identify himself. After a few minutes, defendant was subdued, handcuffed, and gagged. Garrett identified him through the use of fingerprints. During the scuffle, defendant sustained "minor lacerations" to his arm and back.

When the agents left the hotel with defendant in custody, he was handcuffed and shackled, and a hood had been placed over his head. He was transported in a vehicle for about an hour to board an airplane. During the trip, Garrett told defendant he was an FBI agent.

The ensuing flight lasted "a little over an hour." After the plane landed, defendant was transferred to a vehicle and driven for about 40 minutes to a "holding facility" where he was turned over to Pakistani authorities. The FBI agents removed defendant's handcuffs, shackles, and hood when the group arrived at the holding facility, but the persons in charge of the facility put other handcuffs on him. Defendant was placed in one of the eight cells in the facility, where he remained until the morning of June 17.

During defendant's stay in the facility, the FBI agents never left his presence or allowed him to be interrogated or "harassed." He was allowed to eat, drink, and sleep. On two occasions, the agents removed defendant from his cell to "look at his back and look at his arm" and to take his blood pressure and pulse. The agents did not interrogate defendant in the holding facility and made certain he was treated "fairly and humanely."

On June 16, "late in the day," Garrett was advised by an official at the U. S. Embassy in Pakistan that defendant would be "released" the next morning. On June 17 near 7:00 a.m., defendant "was allowed to be released" from the facility in the custody of the FBI agents. He was handcuffed, shackled, and hooded during a 15-minute ride to an airplane. Once on the plane, the hood was removed. Shortly after boarding the aircraft, a physician checked defendant's "well being."

During the 12-hour flight to Fairfax County, Garrett first conducted a "background" conversation with defendant, discussing "his life in the United States, where he lived, where he worked." Garrett knew, from his four-and-one-half-year search for defendant, that he was a Pakistani national. Defendant was not a U.S. citizen and he had not returned to the United States after he fled on January 26, 1993.

After the background conversation, Garrett advised defendant of rights according to Miranda v. Arizona, 384 U.S. 436 (1966). Defendant signed an FBI "Advice of Rights" form, after reading it and having it explained to him. He indicated he was waiving his rights and was willing to give a statement. The subsequent interview lasted about one and one-half hours before defendant signed a written statement summarizing the interview.

In the written statement, defendant confirmed he purchased the AK-47 rifle and about 150 rounds of ammunition several days before the incident in question. He said he drove his pickup truck to the scene, "got out of my vehicle & started shooting into vehicles stopped at a red light."

Continuing, he stated that "I shot approximately 10 rounds shooting 5 people. I aimed for the chest area of the people I shot. I then returned to my truck & drove back to my apartment." He also stated that "several days before the shooting I decided to do the shooting at the CIA or the Israeli Embassy but decided to shoot at the CIA because it was easier because CIA officials are not armed."

As part of his oral statement to Garrett, defendant enumerated political reasons "why he wanted to do this shooting." He said he was "upset" because U.S. aircraft had attacked parts of Iraq, he was "upset with the CIA because of their involvement in Muslim countries," and he was concerned with "killing of Pakistanians by U.S. components."

When Garrett asked defendant "why he stopped shooting," he replied "there wasn't anybody else left to shoot." When asked about the gender of those shot, defendant replied "that he only shot males because it would be against his religion to shoot females."

* * *

The record clearly establishes that Zahed Mir, defendant's roommate and the lessee of the apartment, consented to the search of a suitcase found in a hall closet within the apartment. Two handguns and magazines of AK-47 ammunition were found in the suitcase and eventually were received in evidence. The investigating police officer testified that he had received Mir's "verbal consent several times" to open the suitcase. The trial court correctly concluded, under the evidence, that Mir had the authority to give permission to the officer "to look in" the suitcase, rendering the search valid.

* * *

The defendant says that because his crimes were "political," he somehow is entitled to First Amendment protection, and that his death sentence should be commuted to avoid possible violent acts of reprisal. As the Attorney General observes, defendant received the death sentence, not because he had a political motive, but because he murdered two innocent men, and maimed three others, in an extremely brutal and premeditated manner. As the defendant moved among the stopped automobiles, he shot through the rear window of the Darling vehicle, severely wounding Darling in the torso. In a few seconds, defendant appeared at the front of the Darling vehicle and fired at him again, destroying a part of his head. Darling also suffered at least one gunshot wound to his lower leg, resulting in a compound fracture. There is nothing "arbitrary" about a death sentence imposed under the circumstances of this case and, thus, there is no basis for commutation.

In conducting our proportionality review, we must determine "whether other sentencing bodies in this jurisdiction generally impose the supreme penalty for comparable or similar crimes, considering both the crime and the defendant." Jenkins, 244 Va. at 461, 423 S.E.2d at 371. See former Code • 17-110.1(C)(2) (now • 17.1-313(C)(2)). We have examined our records of all capital murder cases, see former Code • 17-110.1(E) (now • 17.1-313(E)), including those cases where a life sentence was imposed. We have particularly studied those cases in which the death penalty was based on the vileness factor. See Cardwell v. Commonwealth, 248 Va. 501, 517, 450 S.E.2d 146, 156 (1994), cert. denied, 514 U.S. 1097 (1995).

Based upon this review, we conclude that defendant's death sentence is not excessive or disproportionate to penalties generally imposed by sentencing bodies in the Commonwealth for similar conduct. The death sentence generally is imposed for a capital murder when, as here, the defendant is also convicted of killing another person. Goins v. Commonwealth, 251 Va. 442, 469, 470 S.E.2d 114, 132, cert. denied, 519 U.S. 887 (1996).

Consequently, we hold the trial court committed no reversible error, and we have independently determined from a review of the entire record that the sentence of death was properly assessed. Thus, we will affirm the trial court's judgment.


300 F.3d 487

Mir Aimal Kasi, Petitioner-Appellant,
v.
Ronald J. Angelone, Director of the Virginia Department of Corrections,
Respondent-Appellee.

No. 02-2

Federal Circuits, 4th Cir.

August 15, 2002

Before WILKINS, TRAXLER, and KING, Circuit Judges.

Dismissed by published opinion. Judge TRAXLER wrote the opinion, in which Judge WILKINS and Judge KING joined.

OPINION

TRAXLER, Circuit Judge.

Petitioner Mir Aimal Kasi was convicted by a Virginia state court jury of capital murder, murder, malicious wounding, and related firearm charges arising out of the slaying of two Central Intelligence Agency ("CIA") employees and the shooting of three others as each was en route to work on January 25, 1993. The Virginia Supreme Court upheld the convictions and sentences on direct appeal, and denied Kasi's petition for state habeas relief. Kasi now appeals the district court's denial of his federal petition for writ of habeas corpus, see 28 U.S.C.A. § 2254 (West 1994 & Supp.2002), raising a number of claims. Because the state court's decisions are neither contrary to, nor an unreasonable application of, clearly established federal law, as decided by the Supreme Court, we conclude that Kasi is not entitled to habeas relief. Accordingly, we deny Kasi a certificate of appealability, and dismiss his appeal.

I.

A.

According to the facts as found by the Virginia Supreme Court, see Kasi v. Commonwealth, 256 Va. 407, 508 S.E.2d 57 (1998), on the morning of January 25, 1993, a gunman stopped his automobile behind a line of automobiles waiting to turn into the main entrance to the headquarters of the CIA in Fairfax County, Virginia, emerged from his vehicle, and opened fire on the other drivers with an AK-47 assault rifle. Frank Darling and Lansing Bennett, both of whom were employed by the CIA, were killed. Nicholas Starr, Calvin Morgan, and Stephen Williams, also employees of the CIA, were wounded. All five victims were driving separate automobiles.

The gunman was subsequently identified as Mir Aimal Kasi, a/k/a Mir Aimal Kansi, a native of Pakistan who was working as a driver for a local courier service and living in an apartment in Reston with a friend, Zahed Mir, at the time of the shootings. Kasi fled to his home country the day after the shootings and, two days later, was reported to police as a "missing person" by Zahed Mir. On February 8, 1993, police searched Mir and Kasi's apartment and discovered the weapon used in the shootings. Kasi had purchased the gun in Fairfax County three days before the shootings.

On February 16, 1993, Kasi was indicted in Virginia state court for the capital murder of Darling as part of the same act that killed Bennett, see Va.Code Ann. § 18.2-31(7) (Michie Supp.2001); the murder of Bennett, see Va.Code Ann. § 18.2-32 (Michie Supp.2001); the malicious woundings of Starr, Morgan, and Williams, see Va. Code Ann. § 18.2-51 (Michie 1996); and five charges of using a firearm in the commission of these felonies, see Va.Code Ann. § 18.2-53.1 (Michie 1996). Shortly thereafter, an unlawful flight warrant was issued for Kasi by a United States Magistrate Judge in the Eastern District of Virginia, and the CIA and FBI embarked upon an extensive investigation to locate and return Kasi to the United States for trial.

Over the next four and one-half years, Kasi remained uncaptured, traveling in Afghanistan and returning to Pakistan only for brief visits. Then, in the early morning hours of June 15, 1997, FBI agents, including Agent Bradley J. Garrett, located and abducted Kasi from a hotel room in Pakistan. He was hooded, shackled, and transported by vehicle and air to an undisclosed location where he was held in a jail-like facility. Two days later, Kasi was transported by military aircraft from Pakistan to Fairfax County, Virginia, still in the custody of FBI agents, and delivered to the Commonwealth of Virginia for prosecution. The place of Kasi's detention prior to his being returned to the United States, and the identities of any foreign persons involved in his capture and return, have not been disclosed due to security concerns.

During the flight to the United States, Kasi signed a written waiver of his rights and gave an oral and written confession to the crimes to Agent Garrett. The confession was summarized by the Virginia Supreme Court as follows:

In the written statement, [Kasi] confirmed he purchased the AK-47 rifle and about 150 rounds of ammunition several days before the incident in question. He said he drove his pickup truck to the scene, "got out of my vehicle & started shooting into vehicles stopped at a red light." Continuing, he stated that "I shot approximately 10 rounds shooting 5 people. I aimed for the chest area of the people I shot. I then returned to my truck & drove back to my apartment." He also stated that "several days before the shooting I decided to do the shooting at the CIA or the Israeli Embassy but decided to shoot at the CIA because it was easier because CIA officials are not armed."

As part of his oral statement to Garrett, [Kasi] enumerated political reasons "why he wanted to do this shooting." He said he was "upset" because U.S. aircraft had attacked parts of Iraq, he was "upset with the CIA because of their involvement in Muslim countries," and he was concerned with "killing of Pakistanians by U.S. components." When Garrett asked [Kasi] "why he stopped shooting," he replied "there wasn't anybody else left to shoot." When asked about the gender of those shot, [Kasi] replied "that he only shot males because it would be against his religion to shoot females."

Kasi, 508 S.E.2d at 61-62.

Upon his return to Virginia, Kasi was appointed counsel, and pled not guilty to the indictment. On November 10, 1997, after a six-day trial, the jury convicted Kasi of the charges in the indictment. For the first-degree murder of Bennett, the jury fixed Kasi's sentence at life imprisonment plus a $100,000 fine. On each of the malicious shooting convictions, the jury fixed Kasi's punishment at 20 years imprisonment and a fine of $100,000; and for the five firearms offenses, the jury fixed Kasi's punishment at two years for the first conviction and four years for each of the other four convictions.

A separate three-day capital sentencing proceeding was held on November 14, 1997 for the capital murder of Darling, see Va. Code Ann. § 19.2-264.4 (Michie 2000), after which the jury fixed Kasi's punishment for the murder of Frank Darling at death, based upon a finding that the offense was "outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind or an aggravated battery to the victim." Va.Code Ann. § 19.2-264.2 (Michie 2000). The state trial court thereafter imposed the sentences as recommended.

On direct appeal, the Virginia Supreme Court affirmed Kasi's conviction and death sentence, see Kasi, 508 S.E.2d at 68, and the United States Supreme Court denied his petition for writ of certiorari, see Kasi v. Virginia, 527 U.S. 1038 , 119 S.Ct. 2399, 144 L.Ed.2d 798 (1999). Kasi then filed a petition for a writ of habeas corpus in the Virginia Supreme Court. The court dismissed the petition, and denied rehearing, and the United States Supreme Court again denied certiorari review. See Kasi v. Angelone, 531 U.S. 894 , 121 S.Ct. 223, 148 L.Ed.2d 158 (2000).

B.

After obtaining a stay of the state court's order of execution from the United States District Court for the Eastern District of Virginia, Kasi filed a petition for writ of habeas corpus under 28 U.S.C.A. § 2254 in the district court. In the petition Kasi raised three claims pertinent to this appeal:

1. The trial court lacked personal jurisdiction over him because he was abducted in violation of an Extradition Treaty in force between the United States and Pakistan;

2. He was improperly denied access to material evidence possibly favorable to his defense by the trial court's refusal to enforce subpoenas served on the FBI, CIA, and other federal agencies; and

3. The trial court compromised his right to trial by an impartial jury by refusing his request to conduct individual voir dire of the jury members to determine if they had acquired knowledge of the murder of four Americans which had occurred in Karachi, Pakistan, while Kasi's trial was in progress.

See Kasi v. Angelone, 200 F.Supp.2d 585, 591 (E.D.Va.2002).1 The magistrate judge concluded that all claims were exhausted, see 28 U.S.C.A. § 2254(b)(1)(A), but that none entitled him to habeas relief, see 28 U.S.C.A. § 2254(d), and recommended that the habeas petition be dismissed. The district court adopted the recommendation, dismissed the petition, and denied Kasi a certificate of appealability under 28 U.S.C.A. § 2253(c)(2) (West Supp.2002) (providing that, in order to obtain a certificate of appealability, the petitioner must make "a substantial showing of the denial of a constitutional right"). See Kasi, 200 F.Supp.2d at 602.

C.

On appeal, the Commonwealth asserts that we are barred from considering Kasi's first claim under 28 U.S.C.A. § 2254(e) because Kasi seeks to rely upon evidence that was not first presented to the state court for its consideration. The Commonwealth asserts that we are also barred from considering Kasi's remaining two claims because he either did not exhaust the claims in state court or procedurally defaulted the claims in the state court proceedings. Alternatively, the Commonwealth asserts that all three claims for habeas relief are without merit.

Like the district court, we conclude that Kasi's claims on appeal have been adjudicated on the merits by the Virginia Supreme Court. Therefore, we review Kasi's claims under 28 U.S.C.A. § 2254(d), under which we may not grant federal habeas relief unless we conclude that Virginia's adjudication of the claim "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C.A. § 2254(d)(1); see Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision is "contrary to ... clearly established Federal law, as determined by the Supreme Court," 28 U.S.C.A. § 2254(d)(1), "if the state court arrives at a conclusion opposite to that reached by th[e] Court on a question of law or if the state court decides a case differently than th[e] Court has on a set of materially indistinguishable facts," Williams, 529 U.S. at 413, 120 S.Ct. 1495. A state court decision "involve[s] an unreasonable application of[] clearly established Federal law, as determined by the Supreme Court," 28 U.S.C.A. § 2254(d)(1), if the state court decision "identifies the correct governing legal principle from th[e] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. An objectively "unreasonable application of federal law is different from an incorrect or erroneous application of federal law." Id. at 412, 120 S.Ct. 1495. Thus, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable" for habeas relief to be granted. Id. at 411, 120 S.Ct. 1495.

II.

We begin with Kasi's claim that the state trial court lacked personal jurisdiction over him because he was illegally abducted and forcibly removed from his home country of Pakistan by FBI agents in violation of a 1931 Extradition Treaty between the United States and the United Kingdom, which was in force between the United States and Pakistan.2

A.

Under this country's jurisprudence, it has long been held that a criminal defendant who has been abducted to the United States from a foreign nation with which the United States has an extradition treaty does not thereby acquire a defense to the jurisdiction of the courts within this country. See Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 30 L.Ed. 421 (1886) (rejecting defendant's claim that he was illegally subjected to trial in Illinois where a person acting on behalf of the United States government, although armed with a warrant to effectuate the defendant's removal from Peru pursuant to the applicable extradition treaty between the countries, opted instead to forcibly abduct defendant and return him to the United States without Peruvian assistance); cf. Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541 (1952) (relying upon Ker to hold, in the context of a defendant's domestic abduction from the state of Illinois to the state of Michigan for trial, that the power of a court to try a defendant is not impaired by the fact that the defendant was brought within the court's jurisdiction by reason of a "forcible abduction"). As noted in Frisbie, the Supreme Court:

has never departed from the rule announced in Ker v. Illinois, that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a "forcible abduction." No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.

Id. at 522, 72 S.Ct. 509 (citation and footnote omitted); see also United States v. Porter, 909 F.2d 789, 791 (4th Cir.1990) (noting this circuit's adherence to the doctrine announced in Ker and Frisbie to reject criminal defendants' challenge to their involuntary removal from the Philippines and return to the United States for trial); United States v. Wilson, 721 F.2d 967, 972 (4th Cir.1983) (rejecting criminal defendant's challenge to district court's jurisdiction on the grounds that he was "tricked" by the lies of an acquaintance working for the government into leaving Libya (where he was safely a fugitive from justice) and traveling to the Dominican Republic, where he was seized by United States agents and returned to the United States for trial).

In United States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425 (1886), however, the Supreme Court interpreted an extradition treaty between Great Britain and the United States, and held that a criminal defendant who had been returned to the United States from a foreign nation by virtue of extradition proceedings under an extradition treaty could only be tried for offenses charged in the extradition request, "until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings." Id. at 430, 7 S.Ct. 234.

In United States v. Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992), the Court addressed a similar, but slightly different situation from that presented in Ker, and reconciled its holdings in Ker and Rauscher. Specifically, unlike in Ker, agents of the Drug Enforcement Administration ("DEA") were directly involved in the forcible abduction of a physician suspected of aiding the torture and ultimate murder of an undercover DEA agent operating in Mexico, and in effectuating the physician's removal from Mexico and return to the United States for trial on the charges. The Mexican government protested the action as a violation of the extradition treaty in effect between the United States and Mexico. See id. at 657, 112 S.Ct. 2188.

On appeal, the United States Supreme Court rejected the defendant's claim that the treaty prohibited the United States government from forcibly abducting a fugitive within the borders of Mexico. Specifically, the Court noted that the express language of the treaty "d[id] not purport to specify the only way in which one country may gain custody of a national of the other country for the purposes of prosecution," id. at 664, 112 S.Ct. 2188, and "d[id] not support the proposition that the Treaty prohibits abductions outside of its terms," id. at 666, 112 S.Ct. 2188.

The Court also refused to imply a term, based upon international practice and precedent, that would "prohibit[] prosecution where the defendant's presence is obtained by means other than those established by the Treaty." Id. The Court's willingness to imply a term prohibiting the trial and conviction of an extradited defendant for a crime not specified in the extradition request in Rauscher was distinguishable, the Court held, because such a term was justified by the express requirement that evidence establishing probable cause of the crime be presented before extradition was required. See Alvarez-Machain, 504 U.S. at 669, 112 S.Ct. 2188.

In sum, although the terms of an extradition treaty might limit a court's ability to prosecute a defendant who has been returned to the United States by virtue of the treaty in certain circumstances, the Court has plainly held that an extradition treaty does not divest courts of jurisdiction over a defendant who has been abducted from another country where the terms of the extradition treaty do not prohibit such forcible abduction. See Alvarez-Machain, 504 U.S. at 670, 112 S.Ct. 2188; United States v. Noriega, 117 F.3d 1206, 1213 (11th Cir.1997) ("Under Alvarez-Machain, to prevail on an extradition treaty claim, a defendant must demonstrate by reference to the express language of a treaty and/or the established practice thereunder, that the United States affirmatively agreed not to seize foreign nationals from the territory of its treaty partner.").

B.

Under the terms of the Extradition Treaty relied upon by Kasi, the signatory countries have agreed:

to deliver up to each other, under certain circumstances and conditions stated in the present Treaty, those persons who, being accused or convicted of any of the crimes or offences enumerated in Article 3, committed within the jurisdiction of the one Party, shall be found within the territory of the other Party.

J.A. 609. "Murder (including assassination, parricide, infanticide, poisoning), or attempt or conspiracy to murder" is covered by Article 3(1) of the Extradition Treaty. J.A. 610.

Before the Virginia state court, Kasi argued that he was apprehended by FBI agents in violation of the Extradition Treaty and, therefore, that the trial court lacked jurisdiction over him. "[T]he `sanction' for violation of the treaty," Kasi argued, "should be reversal of the capital murder conviction and `repatriation to Pakistan without prejudice for a new trial.'" Kasi, 508 S.E.2d at 62. The circumstances of Kasi's abduction from Pakistan are well-documented. According to the Virginia Supreme Court:

Near 4:00 a.m. on June 15, 1997, Agent Garrett and three other armed FBI agents, dressed in "native clothing," apprehended [Kasi] in a hotel room in Pakistan. [Kasi] responded to a knock on the room's door and the agents rushed inside. [Kasi], who has "a master's degree in English," immediately began screaming in a foreign language and refused to identify himself. After a few minutes, [Kasi] was subdued, handcuffed, and gagged. Garrett identified him through the use of fingerprints. During the scuffle, [Kasi] sustained "minor lacerations" to his arm and back.

When the agents left the hotel with [Kasi] in custody, he was handcuffed and shackled, and a hood had been placed over his head. He was transported in a vehicle for about an hour to board an airplane. During the trip, Garrett told [Kasi] he was an FBI agent.

The ensuing flight lasted "a little over an hour." After the plane landed, [Kasi] was transferred to a vehicle and driven for about 40 minutes to a "holding facility" where he was turned over to Pakistani authorities. The FBI agents removed [Kasi]'s handcuffs, shackles, and hood when the group arrived at the holding facility, but the persons in charge of the facility put other handcuffs on him. [Kasi] was placed in one of the eight cells in the facility, where he remained until the morning of June 17.

During [Kasi]'s stay in the facility, the FBI agents never left his presence or allowed him to be interrogated or "harassed." He was allowed to eat, drink, and sleep. On two occasions, the agents removed [Kasi] from his cell to "look at his back and look at his arm" and to take his blood pressure and pulse. The agents did not interrogate [Kasi] in the holding facility and made certain he was treated "fairly and humanely."

On June 16, "late in the day," Garrett was advised by an official at the U.S. Embassy in Pakistan that [Kasi] would be "released" the next morning. On June 17 near 7:00 a.m., [Kasi] "was allowed to be released" from the facility in the custody of the FBI agents. He was handcuffed, shackled, and hooded during a 15-minute ride to an airplane. Once on the plane, the hood was removed. Shortly after boarding the aircraft, a physician checked [Kasi]'s "well-being."

During the 12-hour flight to Fairfax County, Garrett first conducted a "background" conversation with [Kasi], discussing "his life in the United States, where he lived, where he worked." Garrett knew, from his four-and-one-half-year search for [Kasi], that he was a Pakistani national. [Kasi] was not a U.S. citizen and he had not returned to the United States after he fled on January 26, 1993.

Kasi, 508 S.E.2d at 60-61.

Due to security concerns, the record is silent as to what extent foreign nationals were involved in Kasi's capture, initial imprisonment, and return to the United States.3 There is no dispute, however, that Kasi's forcible seizure in Pakistan and return to the United States were not accomplished pursuant to the Extradition Treaty in force between the United States and Pakistan. Rather, Kasi was apprehended in Pakistan by federal officers in possession of a federal warrant authorizing his arrest for fleeing the jurisdiction to avoid being captured, and then held by United States officials in a secret Pakistani location pending word from the United States Embassy that Kasi could be returned to the United States.

Presented with these facts, and relying principally upon Ker and Alvarez-Machain, the Virginia Supreme Court rejected Kasi's claim on the merits. The Virginia Supreme Court held as follows: In the present case, as in Alvarez-Machain and Ker, [Kasi]'s seizure in a foreign country and his return to this country were not accomplished pursuant to an extradition treaty. The treaty language here does not expressly or impliedly prohibit prosecution in the United States where the defendant's presence was obtained by forcible abduction. Like the treaty in Alvarez-Machain, this treaty "does not purport to specify the only way in which one country may gain custody of a national of the other country for the purposes of prosecution." In sum, [Kasi] was not "extradited" under the provisions of this treaty.

Kasi, 508 S.E.2d at 63 (quoting Alvarez-Machain, 504 U.S. at 664, 112 S.Ct. 2188) (internal citation omitted).4

The district court held that the state court's ruling was not contrary to nor an unreasonable application of pertinent Supreme Court precedent, and we agree. As correctly noted by the Virginia Supreme Court, because there is no provision in the Extradition Treaty between the United States and Pakistan that expressly prohibits the United States from forcibly abducting a defendant from within Pakistani borders, the state trial court did not lack jurisdiction over Kasi.

C.

In his petition for writ of habeas corpus before the district court, however, Kasi pursued a jurisdictional claim that is slightly different from the one he pursued before the Virginia Supreme Court. Specifically, after Kasi filed his petition for writ of habeas corpus with the district court raising his jurisdictional claim and the government filed its motion to dismiss, Kasi sought to introduce several documents which were never presented to the state court for its consideration. Kasi contends that these documents demonstrate that in April 1993, shortly after authorities seized the AK-47 rifle and other evidence from Kasi's apartment in Virginia and learned that Kasi had fled to Pakistan, the United States initiated extradition proceedings with the Pakistani government for the return of Kasi pursuant to the Extradition Treaty.

The first document is a sheet purporting to be from the High Court of Lahore, Pakistan. Although noting the lack of any ability to determine whether the document was authentic or that it represented an accurate translation of the events discussed within it, the district court ruled that the government "los[t] nothing" by admitting the document and accepted the document into the record. J.A. 601. Several weeks later, Kasi filed a supplemental motion to introduce three additional documents that he contended would verify the authenticity and accuracy of the translation. The first of these additional documents purports to be a communication from the United States Secretary of State to the American Embassy in Pakistan, directing the Embassy to submit a formal request to the government of Pakistan for Kasi's extradition. The second purports to be a formal request for extradition dated April 7, 1993, and directed to the Ministry of Foreign Affairs of the Islamic Republic of Pakistan from the United States Embassy. The third purports to be a confirmation that the extradition request was delivered to the Pakistani government on that date. The district court again accepted the documents over the Commonwealth's objection.

Having presented this evidence, Kasi now contends that Alvarez-Machain does not control because, unlike in that case, the United States government had initiated extradition proceedings with the Pakistani government pursuant to the treaty. Once the extradition process was initiated by the United States under the Extradition Treaty, Kasi argues, the United States was prohibited from ignoring that process in favor of forcible abduction. And, accordingly to Kasi, the government was required to complete the formal extradition process set forth in the treaty with the Pakistani government.

1.

As an initial matter, we note that, because Kasi's argument relies upon facts that were neither argued nor established before the Virginia Supreme Court ? specifically, that the United States had initiated extradition proceedings with Pakistan ? Kasi was required to establish that he was entitled to an evidentiary hearing on this issue under 28 U.S.C.A. § 2254(e) to demonstrate those facts.

In a habeas proceeding, "a determination of a factual issue made by a State court shall be presumed to be correct," and "[t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C.A. § 2254(e)(1). The prisoner is not permitted to develop new facts in support of a claim in federal court except in very narrow circumstances. Specifically, the prisoner must demonstrate that:

  (A) the claim relies on (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C.A. § 2254(e)(2).

The government asserts that the district court improperly admitted and considered the extradition documents because Kasi's failure to obtain and present these documents to the state court demonstrates a lack of diligence, which bars the claim from review under 28 U.S.C.A. § 2254(e)(2). See Williams v. Taylor, 529 U.S. 420, 435, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). For his part, Kasi admits that he did not develop this aspect of his jurisdictional claim in state court, but claims that the district court properly considered the evidence because he met the conditions of § 2254(e)(2). See Williams, 529 U.S. at 430, 120 S.Ct. 1479. Specifically, Kasi asserts that he could not have discovered the existence of the United States' extradition request because the request had been designated "confidential" when made and the FBI and CIA refused to disclose classified information during the state court proceedings for security reasons. Accordingly, he asserts that he was diligent in his efforts.

Having reviewed the record, we question whether Kasi made the requisite showing before the district court that would entitle him to introduce new facts and evidence into this federal habeas proceeding. However, the district court did not address § 2254(e)'s restrictions before admitting the additional documents and, given the somewhat unique circumstances in this case (and, in particular, the United States government's need to maintain the confidentiality of certain information pertaining to Kasi's apprehension and return to the United States for trial), the record before us is unclear as to whether Kasi could, in fact, have discovered the existence of the extradition request through the exercise of due diligence during the state court proceedings.

Nevertheless, we need not remand for an evidentiary hearing regarding the extradition process to address Kasi's jurisdictional claim because, even if we assume that the United States had formally initiated extradition proceedings under the Extradition Treaty as now claimed, the United States government's act of forcibly abducting Kasi in lieu of pursuing the extradition process also did not deprive the state court of jurisdiction over him.

2.

The evidence Kasi seeks to rely upon in his federal habeas claim demonstrates, at most, that the United States issued a formal extradition request to the Pakistani government in April 1993, immediately after the crimes were committed and Kasi was indicted. However, it remains undisputed that nothing happened pursuant to the extradition process. Kasi's seizure in Pakistan and his return to the United States in 1997 ? four years after the supposed request was issued ? was not accomplished pursuant to an extradition request or otherwise pursuant to the Extradition Treaty relied upon by Kasi to challenge jurisdiction. Rather, Kasi was located and abducted by FBI agents operating in Pakistan, an act that was not prohibited by the Extradition Treaty and that did not divest the Virginia state court of jurisdiction to try Kasi for the offenses committed in Virginia.

As noted by the Court in Alvarez-Machain:

In the absence of an extradition treaty, nations are under no obligation to surrender those in their country to foreign authorities for prosecution. Extradition treaties exist so as to impose mutual obligations to surrender individuals in certain defined sets of circumstances following established procedures. The Treaty thus provides a mechanism which would not otherwise exist, requiring, under certain circumstances, the [signatory countries] to extradite individuals to the other country, and establishing the procedures to be followed when the Treaty is invoked.

504 U.S. at 664-65, 112 S.Ct. 2188 (citations omitted) (emphasis added). Like the treaty at issue in Alvarez-Machain, the treaty between the United States and Pakistan contains no provision that bars forcible abductions, nor does it otherwise "purport to specify the only way in which one country may gain custody of a national of the other country for the purposes of prosecution." Id. at 664, 112 S.Ct. 2188 (emphasis added). Nor does the treaty provide that, once a request for extradition is made, the procedures outlined in the treaty become the sole means of transferring custody of a suspected criminal from one country to the other.

Finally, because Kasi was not returned to the United States via extradition proceedings initiated under the Extradition Treaty between the United States and Pakistan, Kasi's reliance upon United States v. Rauscher does not avail him. In Rauscher, the defendant "came to this country clothed with the protection which the nature of such [extradition] proceedings and the true construction of the [extradition] treaty gave him" because he was surrendered to this country pursuant to the extradition treaty. Ker, 119 U.S. at 443, 7 S.Ct. 225 (citing Rauscher, 119 U.S. at 425, 7 S.Ct. 234). In particular, Rauscher could be tried by the courts of this country, but only for those offenses contained in the warrant of extradition. The defendant in Ker, in contrast, was "forcibly and with violence" kidnapped from Peru, and returned to Illinois to answer for alleged crimes committed there, in disregard of a warrant issued by the President of the United States which directed that the messenger sent by the President "receive the defendant from the authorities of Peru ... in compliance with the Treaty between the United States and Peru on that subject." Ker, 119 U.S. at 438, 7 S.Ct. 225. Thus, in Ker, the United States government had also initiated the extradition process.

In conclusion, Kasi enjoyed no right to be repatriated to Pakistan under the Extradition Treaty between the United States and Pakistan for formal extradition proceedings because he was not seized or returned to this country in violation of the terms of that treaty. And, even if we were to accept that formal extradition proceedings had been initiated against Kasi pursuant to the treaty, that fact "is irrelevant in view of the Supreme Court's holding that the extradition treaty does not govern the legality of forced abductions." United States v. Chapa-Garza, 62 F.3d 118, 121 (5th Cir.1995) (rejecting claim that Alvarez-Machain does not control where extradition proceedings were pending at the time of a fugitive's abduction from a foreign country).

D.

Having considered Kasi's jurisdictional challenge, with and without the new evidence sought to be introduced, we are confident that the Virginia Supreme Court's rejection of Kasi's jurisdictional challenge was not contrary to nor an unreasonable application of relevant Supreme Court precedents. Kasi was forcibly abducted by United States officials and returned to this country, perhaps with the acquiescence of the Pakistani government or other Pakistani citizens, but not in violation of the terms of the Extradition Treaty between the two countries. Accordingly, Kasi is not entitled to federal habeas relief on this basis.

III.

Kasi's next claim is that he may have been denied access to potentially exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because the trial court refused to enforce a subpoena issued to the FBI for its investigation files and the Commonwealth's attorney did not conduct an independent review of the FBI's files for Brady material.

A.

Prior to trial, Kasi requested that the Commonwealth provide all Brady material of which it was aware. Because of the involvement of various federal agencies, Kasi also served subpoenas duces tecum and requests under the Freedom of Information Act ("FOIA") to the State Department, Immigration and Naturalization Service ("INS"), CIA, and FBI. From the FBI in particular, Kasi sought the production of numerous documents, tapes, and optical disks related to the FBI's investigation of the murders and the ultimate capture of Kasi in Pakistan. See generally, Kansi v. United States Dep't of Justice, 11 F.Supp.2d 42, 43 (D.D.C.1998) (noting that the FBI had identified 14,281 pages of documents as responsive to Kasi's FOIA request). The stated purpose of Kasi's requests was to explore the circumstances surrounding his seizure in Pakistan and his return to this country for trial.

Although some documents were voluntarily produced to Kasi, and FBI Agent Garrett was available for questioning by the defense on several occasions, the FBI and CIA consistently refused to comply with the subpoenas duces tecum. Kasi was advised that he must instead pursue a request for information under the applicable federal regulations governing such requests for information. Although Kasi did pursue his requests directly with the federal agencies, he remained dissatisfied with the responses. He eventually sought and obtained an order from the state court directing the federal agencies to appear and explain their refusal to respond to the court's subpoenas.

At the hearing, a representative for the federal agencies appeared and asserted that under the federal Housekeeping Statute, see 5 U.S.C.A. § 301 (West 1996), United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951), and the doctrine of sovereign immunity, the state court lacked jurisdiction to compel a federal custodian of records to comply with a subpoena for documents obtained by the employee in the course of his official duties. The trial court agreed, refusing to issue an order of contempt, and ruling that it had no jurisdiction to hold a federal official in contempt for failing to respond to a state court's subpoena. Accordingly, the rule to show cause was dismissed and no further attempt to compel production was made.

On direct appeal to the Virginia Supreme Court, Kasi alleged that the trial court "erred in not holding the CIA in contempt for failure to respond to a valid subpoena," J.A. 518 (Assignment of Error # 2), "erred when it denied on 22 September 1997 the motion to compel [exculpatory] discovery" under Brady from the Commonwealth and the United States, J.A. 524 (Assignment of Error 76), and "erred in denying defendant Kasi's motion to compel discovery when the material in the custody of agents of the Federal Government and the Commonwealth's Attorney did not even attempt to investigate what that evidence was since these Federal agents stated the information was classified and confidential," J.A. 523(sic) (Assignment of Error 73).

The Virginia Supreme Court summarily dismissed all three assignments of error on the merits. See Kasi, 508 S.E.2d at 60. In his state habeas petition, Kasi argued that the trial court had denied him "his right to compulsory process, effective assistance of counsel and due process of law in not enforcing its subpoenas duces tecum against the federal officials." J.A. 584. This claim, in turn, was summarily denied by the Virginia Supreme Court as procedurally defaulted.

B.

We begin with the Commonwealth's claim that we are precluded from reviewing Kasi's Brady claim because he procedurally defaulted the claim in the state court proceedings and because it was not raised before the district court.

Before a court may address a claim raised in a federal habeas petition, the petitioner must have first exhausted the claim in state court. See 28 U.S.C.A. §§ 2254(b), (c) (West 1994; Supp 2002). However, "the exhaustion requirement is satisfied so long as a claim has been `fairly presented' to the state courts." Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir.2000), cert. denied, 531 U.S. 1193 , 121 S.Ct. 1194, 149 L.Ed.2d 110 (2001) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). To do so, the petitioner must have presented to the state court "both the operative facts and the controlling legal principles." Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir.1997) (internal quotation marks omitted).

As correctly noted by the magistrate judge, Kasi's Assignments of Error 2, 73, and 76 were raised on direct appeal to the Virginia Supreme Court and, while dismissed in a summary fashion, were nonetheless "fairly presented" and dismissed on the merits. The Virginia Supreme Court thereafter summarily dismissed the state habeas claim as procedurally barred under Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680, 682 (1974) (holding that a defendant may not raise a claim on state habeas that was not presented at the trial and upon direct appeal from the conviction), as opposed to Hawks v. Cox, 211 Va. 91, 175 S.E.2d 271, 274 (1970) (holding that a claim which had been decided against the defendant on direct appeal would likewise not be cognizable on state habeas). But, this does not bar federal habeas review of the claim. Because Kasi had "fairly presented" the claim before us to the state court on direct appeal, and it was adjudicated on the merits in that appeal, he was not required to obtain another merits determination on state habeas to preserve it for federal habeas review. See Corcoran, 220 F.3d at 288.

We also reject the government's claim that we are precluded from considering Kasi's Brady claim because the claim presented in the federal habeas petition only challenged the state court's refusal to enforce the subpoenas against the FBI, and not the Commonwealth attorney's failure to review the FBI files for Brady material. Specifically, the government argues that, because Kasi asserted that he "was improperly denied access to material evidence possibly favorable to his defense by the trial court's refusal to enforce subpoenas served on the FBI, CIA, and other agencies" in his federal habeas petition, J.A. 728, Kasi has abandoned his claim that his due process rights as defined by Brady were violated.

As acknowledged by the Commonwealth, however, the claim before us today is virtually identical to Kasi's Assignment of Error # 73 at the state appellate level. Kasi may have focused his claim on the failure of the state court to compel the FBI to comply with the subpoena issued to it, but his underlying complaint has always been that his due process rights under Brady required the trial court to either enforce the subpoenas served upon the federal agencies or require the Commonwealth to review the information contained in the federal agencies' files for Brady information. Indeed, in addressing Kasi's claim on federal habeas review, the magistrate judge and district court both discussed Kasi's right to discovery and, in particular, his asserted right under Brady to have access to the federal files.

Accordingly, we are satisfied that the substance of Kasi's claim was sufficiently presented to the state court on direct appeal and to the district court in the federal habeas petition and, therefore, is properly before us for our review.

C.

Thus, we turn to the merits of Kasi's claim that his constitutional right to obtain exculpatory evidence was violated by the trial court's refusal to enforce the subpoena issued to the FBI and the Commonwealth attorney's failure to undertake review of the file for Brady material.5 Because the Supreme Court of Virginia summarily dismissed Kasi's Brady claim on direct appeal, we must conduct an independent review of the record and applicable law to determine whether the result reached by the state court contravenes or unreasonably applies clearly established federal law, as determined by the United States Supreme Court. See Bell v. Jarvis, 236 F.3d 149, 163 (4th Cir.2000) (en banc), cert. denied, ___ U.S. ___, 122 S.Ct. 74, 151 L.Ed.2d 39 (2001).

1.

We begin with the Virginia Supreme Court's rejection of Kasi's claim that the state trial court erred in concluding that it lacked jurisdiction to compel the FBI to comply with the subpoena.

Under the federal Housekeeping Statute, "[t]he head of an Executive department ... may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property." 5 U.S.C.A. § 301. Pursuant to this authority, the United States Department of Justice has promulgated a regulation prohibiting employees and former employees of the Department from producing any material contained in the files of the Department without prior approval from the proper official within the Department. See 28 C.F.R. § 16.22(a) (2001).

As noted by the Supreme Court, "[w]hen one considers the variety of information contained in the files of any government department and the possibilities of harm from unrestricted disclosure in court, the usefulness, indeed the necessity, of centralizing determination as to whether subpoenas duces tecum will be willingly obeyed or challenged is obvious." Touhy, 340 U.S. at 468, 71 S.Ct. 416. Thus, the Court held, the Attorney General may "prescribe regulations not inconsistent with law for `the custody, use, and preservation of the records, papers and property appertaining to' the Department of Justice." Id. And, Justice Department employees may not be compelled by states to act contrary to their superiors' orders not to produce such documents. See id. at 467, 71 S.Ct. 416.

Although we only review the Commonwealth's decision to determine if it is contrary to or an unreasonable application of federal law as determined by the Supreme Court, we note that this circuit has been called upon to apply Touhy in cases similar to the one before us. These cases are instructive in our habeas review. See Bell, 236 F.3d at 174 n. 17; Vick v. Williams, 233 F.3d 213, 222 (4th Cir.2000).

First, in Smith v. Cromer, 159 F.3d 875 (4th Cir.1998), we rejected a state criminal defendant's attempt to subpoena two Assistant United States Attorneys and a DEA agent to testify in his drug offense trial and to compel production of their files concerning his activities as a confidential informant. After the government removed the case from the Maryland state court to the federal district court pursuant to 28 U.S.C.A. § 1442(a)(1), the district court granted the government's motion for protective order and to quash the subpoenas. We affirmed.

Noting the well-settled rule from Touhy, we held that, under the governmental privilege of sovereign immunity, the state court lacked jurisdiction to enforce the subpoenas. See Smith, 159 F.3d at 881.6 And, we noted, any attempt by a state court "to assert the power of judicial review over decisions made by federal agencies while implementing their own regulations [would be] contrary to the Administrative Procedures Act, 5 U.S.C.A. § 702, which expressly limits such review authority to the federal courts." Id. at 879.

Next, in United States v. Williams, 170 F.3d 431 (4th Cir.1999), we were presented with a state court subpoena issued on behalf of the defendant in a state murder prosecution to the FBI seeking production of all files pertaining to its assistance in the state homicide investigation. Like Kasi, the defendant in Williams claimed that the files contained exculpatory evidence to which he was entitled. When the FBI refused to comply, the state court issued a show cause order, again prompting the government to remove the matter to federal court and obtain an order quashing the state court subpoena and show cause order. We affirmed, reiterating that a state court lacks "jurisdiction to compel the FBI to produce documents subpoenaed by a defendant in the course of a state criminal prosecution." Id. at 433.

In this case, the Virginia Supreme Court rejected Kasi's claim that his rights under Brady were violated by the trial court's refusal to enforce subpoenas issued to the FBI, which had also participated in the investigation of the CIA murders with which he was charged and in his ultimate apprehension in Pakistan. Having independently reviewed the facts and the legal precedents that guide us, we cannot say that the Virginia Supreme Court's decision in this regard was contrary to or an unreasonable application of federal law, as determined by the Supreme Court.

2.

Thus, we turn to Kasi's claim that the Virginia Supreme Court's rejection of his Brady claim was contrary to or an unreasonable application of Supreme Court precedent because, under such precedent, the Commonwealth had a duty to review the FBI files for Brady material notwithstanding the sovereign immunity bar to the state trial court's enforcement authority.

In Brady, the Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. 1194. "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (internal quotation marks omitted).

Brady, however, created no general constitutional right to discovery in a criminal case. See Ritchie, 480 U.S. 39, 59-60, 107 S.Ct. 989. "The mere possibility that an item of undisclosed information might have helped the defense ... does not establish `materiality' in the constitutional sense." United States v. Agurs, 427 U.S. 97, 109-110, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Nor does the Brady right to obtain exculpatory evidence equate to a right to rummage through governmental files. See Ritchie, 480 U.S. at 59, 107 S.Ct. 989.

In the typical case where a defendant makes only a general request for exculpatory material under Brady v. Maryland, it is the State that decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court's attention, the prosecutor's decision on disclosure is final. Defense counsel has no constitutional right to conduct his own search of the State's files to argue relevance.

Id. (internal citation and footnote omitted); see also United States v. LaRouche, 896 F.2d 815, 826 (4th Cir.1990) (noting that "[c]riminal defendants do not have a `general' constitutional right to discovery.... [A]n item that the government is required to provide must not only be exculpatory but also `material in the sense that its suppression undermines confidence in the outcome of the trial.'" (citation omitted)).

This case, of course, differs from the ordinary one. Kasi does not allege that the Commonwealth has failed to conduct a review of its own files, or the files of state agencies, and produce exculpatory evidence to which Brady would entitle him. And, Kasi concedes that he cannot point to a specific identifiable piece of evidence that may have been favorable or in any way material to his guilt or innocence, whether contained within state files or federal files. For this reason, the magistrate judge recommended rejecting Kasi's Brady claim, noting that Kasi was attempting to "leap frog over the basic hurdle he has by asserting his right to recover evidence in the government's [possession] ... without ever giving a clue of what the evidence favorable to the accused and material to guilt or punishment might be." J.A. 663.

The district court agreed, noting that "[i]n his state habeas petition, [Kasi] did not provide a single suggestion of a single fact present in the government's files which would go to the issue of his guilt or innocence, or the punishment imposed upon him." Kasi, 200 F.Supp.2d at 599. As noted by the magistrate judge and district court, Kasi failed to establish a basis for his claim that the federal agency files contained material evidence.

3.

Although we agree that Kasi has failed to make the requisite showing to establish an ordinary Brady claim, the district court's conclusion in this regard does not completely address Kasi's argument on appeal. Kasi asserts that he need not make the normal showing that exculpatory evidence exists which was not brought forward. Rather, he asserts that was denied due process because, under Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), the Commonwealth was required to conduct a Brady review of the FBI's files in order to locate and produce any exculpatory evidence that might exist within them.

In Kyles, the Supreme Court held that, because materiality for Brady purposes is measured in terms of the cumulative effect of suppressed evidence, the prosecutor is "assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of `reasonable probability' is reached." Kyles, 514 U.S. at 437, 115 S.Ct. 1555. This, the Court held, "means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Id.

Succinctly stated, Kasi claims that, under Kyles, the Commonwealth was required to conduct a Brady review of all of the files of all of the agencies who assisted in the investigation, arrest, and prosecution of Kasi for the CIA murders, regardless of whether they were state or federal agencies. And, Kasi asserts, he need not point to any exculpatory evidence which was withheld to establish a violation of his Brady rights, as he would otherwise be required to do, so long as he establishes that no review was undertaken by the prosecutor. This absolute duty to review federal agency files must be imposed upon the Commonwealth, Kasi argues, because state criminal defendants will otherwise be left with no mechanism for obtaining exculpatory evidence to which they would otherwise be entitled under Brady.

Although Kasi's Brady claim is an interesting one, we find it to be procedurally and analytically flawed. As an initial premise, we reject Kasi's claim that Kyles imposes a duty upon a state prosecutor to conduct a Brady review of federal agency files. The FBI files requested by Kasi are in the possession of federal authorities, over whom the Commonwealth has no authority. See Williams, 170 F.3d at 434 & n. 3; Smith, 159 F.3d at 882-83. Thus, the state prosecutor has no more authority to demand that the FBI allow him access to its files so that he can conduct a Brady review than the state court has to compel the FBI to allow the state criminal defendant such access.

Kasi's claim that there must be some exception to the Touhy bar in cases such as his because there is no mechanism by which he can assert his constitutional right to disclosure of the documents is also without merit. In Williams, the state criminal defendant also argued that we should "carve out an exception to the doctrine of sovereign immunity" discussed in Smith, "and rule that he need not have complied with the Justice Department's regulations, because the FBI was assisting state authorities in their investigation of the state crimes for which he was ultimately indicted." Williams, 170 F.3d at 434. Requiring compliance with agency regulations in such circumstances, the defendant argued, "would be tantamount to sanctioning a federal agency's decision to withhold potentially exculpatory evidence from a state criminal defendant." Id.

We rejected the claim, holding that a state criminal defendant who seeks investigative file materials from a federal agency must do so under the applicable agency regulations and that "[t]he proper method for judicial review of the agency's final decision pursuant to its regulations is through the Administrative Procedure Act (`APA')." Id.; see also 5 U.S.C.A. §§ 701-706 (West 1996). If "aggrieved by the response of a federal law enforcement agency made under its regulations," the state criminal defendant is not without a remedy. Williams, 170 F.3d at 434. He "may assert his constitutional claim to the investigative information before the district court, which possesses authority under the APA to compel the law enforcement agency to produce the requested information in appropriate cases." Id.7

Accordingly, the Administrative Procedure Act provides an appropriate procedure for judicial review of a decision by a federal agency to withhold investigation materials from a state criminal defendant, in which the state criminal defendant can proffer any perceived rights to the file materials under the constitutional principles set forth in Brady and its progeny. Indeed, Kasi availed himself of such a procedure. After he was convicted, he sued under the Freedom of Information Act to compel production by the Department of Justice and the FBI of documents pertaining to him.

In response, the FBI released portions of its files, but withheld others under a FOIA exception for "investigatory files compiled for law enforcement purposes whose release `could reasonably be expected to interfere with enforcement proceedings.'" Kansi, 11 F.Supp.2d at 43-44 (quoting 5 U.S.C.A. 552(b)(7)(A) (West 1996)). Kasi thereafter demanded the remainder of the documents, asserting in part that the information sought might be exculpatory under Brady. The district court rejected the demand and dismissed the case. Apparently, Kasi did not choose to pursue an appeal of that ruling to the District of Columbia Court of Appeals.

In this case, we are presented with the much narrower issue of whether the Virginia Supreme Court's rejection of Kasi's Brady claim was contrary to or an unreasonable application of the principles set forth by the Supreme Court in Brady and Kyles. It clearly was not and, therefore, Kasi is not entitled to habeas relief on this basis.

IV.

Kasi's final contention is that he was deprived of a fair trial, as guaranteed by the Due Process Clause of the Fourteenth Amendment, because the state trial court refused his request to conduct individual voir dire of the jurors to determine if they had acquired knowledge of the murder of four Americans that had occurred in Karachi, Pakistan, while the trial was in progress.

A.

No one disputes the high profile nature of this case. Indeed, the record reveals that some heightened security measures were taken to protect the jurors from the outset, including maintaining the confidentiality of their identities and, while not sequestering them, bringing them to the courthouse in a group from an off-site meeting location. After the jury rendered its verdicts in the guilt phase, the members submitted a note to the trial court inquiring as to whether they should be aware of any activities or information regarding their personal safety and whether there were any precautions or security measures available to them through the Commonwealth. In sum, the jurors requested "a security briefing as to possible risks [they] may encounter." J.A. 446.

Kasi's counsel requested individual voir dire of the jurors to determine if there had been any discussion or speculation of danger and moved, in the alternative, for a mistrial. The trial court denied both motions. Instead, the court brought the jurors in collectively, assured them that the security measures that had been taken were the same measures taken in any potential capital and high-publicity case, assured them that the court was aware of no particular danger to them in this case, and invited them to individually express any particular concerns through another note. No further concerns were expressed by the jurors, and the court later commented that he had observed no further signs of concern.

Two days later, four Americans were murdered in Karachi, Pakistan. News media raised the possibility that the killings were related to the conviction of Kasi as retaliation by his sympathizers. Kasi's counsel brought the news reports to the court's attention the following morning and requested individual voir dire of the jurors to determine if any had knowledge of the event. The trial court denied this motion, as well as a follow-up motion for a mistrial, noting that defense counsel's fear that members of the jury would not be honest in a group setting was speculative. Instead, the court ruled that it would be best to conduct a slightly heightened questioning of the members of the jury as a group.

Thus, the trial court brought the jury in and conducted his usual inquiry as to whether anyone had been exposed to any media accounts about the trial, and then added a comment that the court was "particularly concerned about ... news articles that were on the front page of various newspapers and on TV and on the radio related by the press to this case." J.A. 467. There was no response to either inquiry, and trial resumed.

Later that same day, the trial court noted that the press coverage and requests for press credentials had escalated since the Karachi murders, and the court expressed concern that the coverage had shifted from the reporting of facts and events of the trial to "opinion and speculation." J.A. 471. In view of this "crazy" reporting, J.A. 472, and to avoid having to deal with a defense motion for a mistrial each day based upon the escalated and sensationalized coverage, the trial court ruled that it would be best to sequester the jury for the balance of the sentencing phase and for their deliberations.

Kasi's counsel, asserting that the sequestration would send "a terrible signal that they are in danger," J.A. 479, again moved for a mistrial, which was denied. The trial court then brought the jurors in and advised them that they should make preparations for sequestration, taking care to inform the jurors that the sequestration had become necessary because the trial was in the finishing stages and that he felt they needed to be protected from press coverage, which had become very opinionated.

Shortly after being informed that the jury would be sequestered, a single juror wrote a private note advising the trial court that she had heard the beginnings of a report about Americans being shot and killed in Pakistan before she could turn off her clock-radio that morning. In the note, the juror stated that she did not bring up the matter earlier because she was not sure if the report was related to the case, but that the sequestration decision had caused her to consider the possibility that it might be related.

After consulting with counsel, the court and counsel conducted individual voir dire of this juror. The juror repeatedly stated that she did not know at the time she heard the report, and still did not know, whether the Pakistani incident was related to the trial. She further testified that she had not discussed the matter with any of the other jurors and that, in any event, the portion of the report she had heard would have no effect upon her ability to be fair and impartial and to decide the case based solely upon the law and the evidence. Defense counsel's request to conduct individual voir dire of the remaining members of the jury regarding their knowledge of the incident was again denied, as were the subsequent motions for mistrial.

On direct appeal, the Virginia Supreme Court summarily held that "[t]he court's refusal to grant [Kasi's] repeated motions for a mistrial during this series of trial events was an exercise of the court's sound discretion, and we find no abuse of that discretion." Kasi, 508 S.E.2d at 67. Therefore, we must conduct an independent review of the record and applicable law to determine whether the result reached by the state court was "contrary to," or "an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C.A. § 2254(d)(1); see Bell, 236 F.3d at 163.

B.

As an initial matter, we address the Commonwealth's assertion that Kasi procedurally defaulted this claim by arguing summarily and under Virginia caselaw that the trial court abused its discretion by not allowing individual voir dire regarding the Karachi killings on direct appeal, and by not raising the issue at all on state habeas review. See Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam) (reversing grant of writ of habeas corpus where petitioner, on direct appeal in state court, claimed that evidentiary ruling violated state law but did not claim violation of any federal constitutional right).

The trial transcript reveals that Kasi's counsel clearly objected to the trial court's refusal to conduct individual voir dire as a violation of his right to a fair and impartial jury under both the United States Constitution and the Virginia Constitution, and it appears that he pursued his claim on direct appeal to the Virginia Supreme Court. Thus, we are satisfied that the federal constitutional claim presented in Kasi's federal habeas petition was "`fairly presented' to the state court[]" for decision and is properly considered here. Corcoran, 220 F.3d at 288. Although the Supreme Court of Virginia summarily dismissed Kasi's assignments of error and did not discuss the federal constitutional issue in doing so, "it is the petitioner's argument to the court rather than the court's decision that is dispositive." Weeks v. Angelone, 176 F.3d 249, 262 (4th Cir.1999).

C.

The Sixth and Fourteenth Amendments to the United States Constitution guarantee a state criminal defendant the right to be tried "by a panel of impartial, indifferent jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) (internal quotation marks omitted). Voir dire examination is a principal means of enabling the court to ensure that an impartial jury decides the case. See Mu'Min v. Virginia, 500 U.S. 415, 431, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991) ("Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges"); Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981) (plurality opinion) ("Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored").

It is well established, however, that a trial court has "broad discretion in conducting the voir dire of the jury, and particularly in phrasing the questions to be asked." United States v. Jones, 608 F.2d 1004, 1007 (4th Cir.1979); see, e.g., Mu'Min, 500 U.S. at 424, 111 S.Ct. 1899 (noting that "the trial court retains great latitude in deciding which questions should be asked on voir dire"); Ristaino v. Ross, 424 U.S. 589, 594, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976) ("Voir dire is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion." (internal quotation marks omitted)). And, "[p]art and parcel of [this] deference to the trial court's conduct of voir dire is a reluctance to second-guess the court's decision to refuse inquiry into certain matters." United States v. Lancaster, 96 F.3d 734, 739 (4th Cir.1996). A defendant does not always have the right "to have questions posed during voir dire specifically directed to matters that conceivably might prejudice veniremen against him." Ristaino, 424 U.S. at 595, 96 S.Ct. 1017.

Rather, "the State's obligation to the defendant to impanel an impartial jury generally can be satisfied by less than an inquiry into a specific prejudice feared by the defendant." Id. at 595, 96 S.Ct. 1017 (footnote omitted). Thus, we have held that, "[i]n the context of cases ... in which the proposed voir dire question does not address issues of racial or ethnic prejudice," the trial court "need not pursue a specific line of questioning on voir dire, provided the voir dire as a whole is reasonably sufficient to uncover bias or partiality in the venire." Lancaster, 96 F.3d at 739-40.

In this case, the trial court conducted its usual voir dire of the jury on the morning after the news stories emerged concerning the Karachi murders, inquiring as to whether any member of the jury had "received any information from the media, friends, family, anywhere, in any way related to th[e] case." J.A. 467. Receiving no response, the court then went further to inform the jury that the court was "particularly concerned about ... news articles that were on the front page of various newspapers and on TV and on the radio related by the press to th[e] case" and advised the jury that it "want[ed] to be sure that nobody has anything that you need to bring to our attention about anything that you have heard." J.A. 467.

Prompted by the court's sequestration of the jury due to increased press coverage, a single juror later came forward out of concern that she may have heard a related media account that morning. This juror, however, remained uncertain of whether the account was related and, in any event, the trial court carefully questioned the juror on an individual basis regarding any possible impartiality, receiving multiple assurances that what she heard would have no effect upon her ability to render a verdict based solely upon the facts and evidence presented during the trial. Kasi has pointed to nothing that would indicate that any of the other jurors had heard about the Karachi killings, nor is there any indication that any member of the group would not or did not truthfully respond to the trial court's questions to the group.

Finding that the trial court's questions were sufficient to ensure the absence of any bias or prejudice on the part of the jury, the trial court denied Kasi's motions for individual voir dire and, in the alternative, for mistrial, and the Virginia Supreme Court found that the trial court did not abuse its discretion in this regard. We agree. Having reviewed the voir dire conducted by the trial court, we too are satisfied that it was sufficient to assure that Kasi was tried by a fair and impartial jury. Because the Virginia Supreme Court's decision that the trial court did not abuse its discretion in refusing to allow individual voir dire was not contrary to or an unreasonable application of federal law, as determined by the United States Supreme Court, we reject the claim for habeas relief on this basis as well.

V.

For the foregoing reasons, we conclude that the district court correctly denied Kasi's petition for habeas relief. Accordingly, we deny Kasi's request for a certificate of appealability and dismiss the appeal.

CERTIFICATE OF APPEALABILITY DENIED AND APPEAL DISMISSED.

[o]n review, district courts have jurisdiction to set aside agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," including action that is "contrary to constitutional right, power, privilege, or immunity." 5 U.S.C.A. § 706(2)(A)-(B). In addition, the APA vests the district court with authority to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C.A. § 706(1).

Id. at 434.



Mir Aimal Kasi

 

 

 
 
 
 
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