Mir Aimal Kasi v.  RONALD J. ANGELONE, Director of the Virginia Department of Corrections

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 MIR AIMAL KASI,
Petitioner-Appellant,
v.
No. 02-2  RONALD J. ANGELONE, Director of
the Virginia Department of
Corrections,
Respondent-Appellee. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Jerome B. Friedman, District Judge.
(CA-00-470-2)
Argued: June 5, 2002
Decided: 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.
COUNSEL
ARGUED: Richard Joshua Cromwell, MCGUIRE WOODS, L.L.P.,
Norfolk, Virginia; Charles Russell Burke, Virginia Beach, Virginia,
for Appellant. Katherine P. Baldwin, Senior Assistant Attorney Gen-
eral, OFFICE OF THE ATTORNEY GENERAL, Richmond, Vir-
ginia, for Appellee. ON BRIEF: Jerry W. Kilgore, Attorney General

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of Virginia, OFFICE OF THE ATTORNEY GENERAL, Richmond,
Virginia, for Appellee.
OPINION
TRAXLER, Circuit Judge:
Petitioner Mir Aimal Kasi was convicted by a Virginia state court
jury of capital murder, murder, malicious wounding, and related fire-
arm 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 appeala-
bility, and dismiss his appeal.
I.
A.
According to the facts as found by the Virginia Supreme Court, see
Kasi v. Commonwealth, 508 S.E.2d 57 (Va. 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 Wil-
liams, 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
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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 Ben-
nett, see Va. Code Ann. § 18.2-31(7) (Michie Supp. 2001); the mur-
der 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 exten-
sive 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 vis-
its. 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 air-
craft from Pakistan to Fairfax County, Virginia, still in the custody of
FBI agents, and delivered to the Commonwealth of Virginia for pros-
ecution. 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 con-
cerns.
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:
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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 peo-
ple. 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] enumer-
ated 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 imprison-
ment 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
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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 aggra-
vated battery to the victim." Va. Code Ann. § 19.2-264.2 (Michie
2000). The state trial court thereafter imposed the sentences as recom-
mended.
On direct appeal, the Virginia Supreme Court affirmed Kasi’s con-
viction 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 (1999). Kasi then filed a petition for
a writ of habeas corpus in the Virginia Supreme Court. The court dis-
missed the petition, and denied rehearing, and the United States
Supreme Court again denied certiorari review. See Kasi v. Angelone,
531 U.S. 894 (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 indi-
vidual 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.
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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, dis-
missed 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 con-
sidering 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 with-
out 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 con-
clude 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
(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
1As a fourth claim, Kasi asserted that he was denied his constitutional
right to confront and cross-examine FBI Agent Garrett because the court
refused to permit Garrett to be examined with regard to certain classified
information. Kasi has not pursued this claim on appeal.
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decides a case differently than th[e] Court has on a set of materially
indistinguishable facts," Williams, 529 U.S. at 413. A state court deci-
sion "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 govern-
ing legal principle from th[e] Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s case." Id. An objec-
tively "unreasonable application of federal law is different from an
incorrect or erroneous application of federal law." Id. at 412. 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.
II.
We begin with Kasi’s claim that the state trial court lacked per-
sonal 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 (1886)
(rejecting defendant’s claim that he was illegally subjected to trial in
Illinois where a person acting on behalf of the United States govern-
2Throughout the state and federal proceedings involving Kasi, the
Commonwealth has agreed that the 1931 Extradition Treaty between the
United States and the United Kingdom, Pakistan’s former colonial sover-
eign, has been continued in force by the Islamic Republic of Pakistan
and, therefore, governs extradition proceedings between the two coun-
tries.
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ment, 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. Fris-
bie v. Collins, 342 U.S. 519, 522 (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 abduc-
tion"). As noted in Frisbie, the Supreme Court:
has never departed from the rule announced in Ker v. Illi-
nois, 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 pro-
cess of law is satisfied when one present in court is con-
victed 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 (citation and footnote omitted); see also United States v.
Porter, 909 F.2d 789, 791 (4th Cir. 1990) (noting this circuit’s adher-
ence to the doctrine announced in Ker and Frisbie to reject criminal
defendants’ challenge to their involuntary removal from the Philip-
pines and return to the United States for trial); United States v. Wil-
son, 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 (1886), however, the
Supreme Court interpreted an extradition treaty between Great Britain
and the United States, and held that a criminal defendant who had
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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.
In United States v. Alvarez-Machain, 504 U.S. 655 (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 Adminis-
tration ("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.
On appeal, the United States Supreme Court rejected the defen-
dant’s claim that the treaty prohibited the United States government
from forcibly abducting a fugitive within the borders of Mexico. Spe-
cifically, 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 prosecu-
tion," id. at 664, and "d[id] not support the proposition that the Treaty
prohibits abductions outside of its terms," id. at 666. The Court also
refused to imply a term, based upon international practice and prece-
dent, that would "prohibit[] prosecution where the defendant’s pres-
ence 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 evi-
dence establishing probable cause of the crime be presented before
extradition was required. See Alvarez-Machain, 504 U.S. at 669.
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
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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; United
States v. Noriega, 117 F.3d 1206, 1213 (11th Cir. 1997) ("Under
Alvarez-Machain, to prevail on an extradition treaty claim, a defen-
dant 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 ter-
ritory 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, poi-
soning), 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 appre-
hended 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 rever-
sal of the capital murder conviction and ‘repatriation to Pakistan with-
out 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," appre-
hended [Kasi] in a hotel room in Pakistan. [Kasi] responded
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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 iden-
tify himself. After a few minutes, [Kasi] was subdued, hand-
cuffed, 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 "ha-
rassed." 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 pres-
sure 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
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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], dis-
cussing "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 for-
eign 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 appre-
hended in Pakistan by federal officers in possession of a federal war-
rant 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
3The state trial court conducted an in camera interview of Agent Gar-
rett on this issue. According to a memorandum prepared by the court to
memorialize the meeting, Garrett informed the court that the CIA’s con-
fidential contacts in Pakistan would be compromised if additional infor-
mation was offered as to who was present and that any specifics as to the
Pakistani government’s involvement would be dangerous to reveal.
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prosecution in the United States where the defendant’s pres-
ence 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 prosecu-
tion." In sum, [Kasi] was not "extradited" under the provi-
sions of this treaty.
Kasi, 508 S.E.2d at 63 (quoting Alvarez-Machain, 504 U.S. at 664)
(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 prece-
dent, 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 bor-
ders, 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. Specifi-
cally, 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
4In pretrial motions, Kasi challenged jurisdiction and moved to sup-
press evidence stemming from the FBI’s seizure of him based on the
unreasonableness of the seizure. The trial court ruled that Kasi did not
have standing to challenge the reasonableness of the FBI’s seizure of
him. Cf. United States v. Verdugo-Urquidez, 494 U.S. 259, 261 (1990)
(holding that the Fourth Amendment does not apply to "the search and
seizure by United States agents of property that was owned by a nonresi-
dent alien and located in a foreign country"). The trial court also rejected
Kasi’s motion to suppress the evidence based upon an alleged violation
of the Vienna Convention on Consular Relations, holding that it does not
give legal, enforceable rights to individuals. Kasi does not now challenge
the resolution of these issues.
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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 Extradi-
tion 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 deter-
mine 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 accu-
racy of the translation. The first of these additional documents pur-
ports to be a communication from the United States Secretary of State
to the American Embassy in Pakistan, directing the Embassy to sub-
mit a formal request to the government of Pakistan for Kasi’s extradi-
tion. 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 Paki-
stani 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 govern-
ment 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 Vir-
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ginia Supreme Court — specifically, that the United States had initi-
ated 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 pris-
oner 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 discov-
ered 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 appli-
cant 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
(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. 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.
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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 informa-
tion 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. Nev-
ertheless, 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 extra-
dition 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 extradi-
tion 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 pur-
suant to the Extradition Treaty relied upon by Kasi to challenge juris-
diction. Rather, Kasi was located and abducted by FBI agents
operating in Pakistan, an act that was not prohibited by the Extradi-
tion Treaty and that did not divest the Virginia state court of jurisdic-
tion 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
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impose mutual obligations to surrender individuals in cer-
tain defined sets of circumstances following established pro-
cedures. The Treaty thus provides a mechanism which
would not otherwise exist, requiring, under certain circum-
stances, the [signatory countries] to extradite individuals to
the other country, and establishing the procedures to be fol-
lowed when the Treaty is invoked.
504 U.S. at 664-65 (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 abduc-
tions, 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 (emphasis added). Nor does
the treaty provide that, once a request for extradition is made, the pro-
cedures 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 [extradi-
tion] 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 (citing Rauscher, 119 U.S. at
425). In particular, Rauscher could be tried by the courts of this coun-
try, 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 Presi-
dent 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. 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
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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 irrele-
vant 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 pro-
ceedings were pending at the time of a fugitive’s abduction from a
foreign country).
D.
Having considered Kasi’s jurisdictional challenge, with and with-
out the new evidence sought to be introduced, we are confident that
the Virginia Supreme Court’s rejection of Kasi’s jurisdictional chal-
lenge 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 acquies-
cence 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 poten-
tially exculpatory evidence, in violation of Brady v. Maryland, 373
U.S. 83 (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,
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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 Paki-
stan. 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 circum-
stances surrounding his seizure in Pakistan and his return to this coun-
try 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 hear-
ing, 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
(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 mate-
rial in the custody of agents of the Federal Government and the Com-
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monwealth’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 assign-
ments 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 peti-
tion, 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 (2001) (quoting
Picard v. Connor, 404 U.S. 270, 275 (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 Vir-
ginia Supreme Court thereafter summarily dismissed the state habeas
claim as procedurally barred under Slayton v. Parrigan, 205 S.E.2d
680, 682 (Va. 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, 175 S.E.2d
271, 274 (Va. 1970) (holding that a claim which had been decided
against the defendant on direct appeal would likewise not be cogniza-
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ble 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 determina-
tion on state habeas to preserve it for federal habeas review. See Cor-
coran, 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. Specifi-
cally, 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 dis-
trict 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 prop-
erly before us for our review.
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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 Common-
wealth attorney’s failure to undertake review of the file for Brady mate-
rial.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, 122 S. Ct. 74 (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 juris-
diction to compel the FBI to comply with the subpoena.
Under the federal Housekeeping Statute, "[t]he head of an Execu-
tive department . . . may prescribe regulations for the government of
his department, the conduct of its employees, the distribution and per-
formance 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 con-
tained 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."
5As previously noted, the record indicates that the agencies did volun-
tarily produce some documents to Kasi during the state court proceed-
ings. In this appeal, Kasi has only pursued a Brady claim based upon the
FBI file materials.
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Touhy, 340 U.S. at 468. 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 employ-
ees may not be compelled by states to act contrary to their superiors’
orders not to produce such documents. See id. at 467.
Although we only review the Commonwealth’s decision to deter-
mine 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 gov-
ernmental 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 imple-
menting their own regulations [would be] contrary to the Administra-
tive 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 investiga-
6Because a federal court’s jurisdiction upon removal under
§ 1442(a)(1) is derivative of the state court’s jurisdiction, we also held
that the doctrine of sovereign immunity divested the federal court of
jurisdiction to enforce the subpoenas. See Smith, 159 F.3d at 879.
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tion. Like Kasi, the defendant in Williams claimed that the files con-
tained 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 con-
trary 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 appli-
cation 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, irre-
spective of the good faith or bad faith of the prosecution." Brady, 373
U.S. at 87. "[E]vidence is material only if there is a reasonable proba-
bility 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 (1987) (internal quotation
marks omitted).
Brady, however, created no general constitutional right to discov-
ery in a criminal case. See Richie, 480 U.S. 59-60. "The mere possi-
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bility 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 (1976). Nor
does the Brady right to obtain exculpatory evidence equate to a right
to rummage through governmental files. See Richie, 480 U.S. at 59.
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 dis-
closed. 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 omit-
ted)).
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 evi-
dence 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, not-
ing that Kasi was attempting to "leap frog over the basic hurdle he has
by asserting his right to recover evidence in the government’s [pos-
session] . . . 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 peti-
tion, [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
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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 show-
ing to establish an ordinary Brady claim, the district court’s conclu-
sion 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. Whit-
ley, 514 U.S. 419 (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 sup-
pressed evidence, the prosecutor is "assigned the consequent responsi-
bility 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. This, the Court held, "means that the individ-
ual 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 Common-
wealth was required to conduct a Brady review of all of the files of
all of the agencies who assisted in the investigation, arrest, and prose-
cution 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
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Kasi’s claim that Kyles imposes a duty upon a state prosecutor to con-
duct 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 com-
plied 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. Requir-
ing 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 regu-
lations 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 regula-
tions," the state criminal defendant is not without a remedy. Williams,
170 F.3d at 434. He "may assert his constitutional claim to the inves-
tigative information before the district court, which possesses author-
ity under the APA to compel the law enforcement agency to produce
the requested information in appropriate cases." Id.7
7As we noted in Williams,
[o]n review, district courts have jurisdiction to set aside agency
action that is "arbitrary, capricious, an abuse of discretion, or
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Accordingly, the Administrative Procedure Act provides an appro-
priate 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 por-
tions of its files, but withheld others under a FOIA exception for "in-
vestigatory 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
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 dis-
trict court with authority to "compel agency action unlawfully
withheld or unreasonably delayed." 5 U.S.C.A. § 706(1).
Id. at 434.
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of the murder of four Americans that had occurred in Karachi, Paki-
stan, 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 confiden-
tiality 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 encoun-
ter." 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 collec-
tively, 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, Paki-
stan. 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 coun-
sel’s fear that members of the jury would not be honest in a group set-
ting 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
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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 morn-
ing. 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 pos-
sibility 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 knowl-
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edge 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 (1995) (per curiam) (revers-
ing 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 Consti-
tution 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 fed-
eral 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).
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C.
The Sixth and Fourteenth Amendments to the United States Consti-
tution 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 (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 (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 (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 discre-
tion in conducting the voir dire of the jury, and particularly in phras-
ing 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 (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
(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 mat-
ters." 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.
Rather, "the State’s obligation to the defendant to impanel an impar-
tial jury generally can be satisfied by less than an inquiry into a spe-
cific prejudice feared by the defendant." Id. at 595 (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 question-
ing on voir dire, provided the voir dire as a whole is reasonably suffi-
cient to uncover bias or partiality in the venire." Lancaster, 96 F.3d
at 739-40.
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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 "re-
ceived 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 "particu-
larly 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 regard-
ing 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 cor-
rectly denied Kasi’s petition for habeas relief. Accordingly, we deny
Kasi’s request for a certificate of appealability and dismiss the appeal.
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CERTIFICATE OF APPEALABILITY
DENIED AND APPEAL DISMISSED
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