KATHERINE B. FORREST, District Judge:
In 2004, Mostafa Kamel Mostafa, also referred to in this action as Abu Hamza and Abu Hamza al-Masri, was indicted on eleven separate counts. (Indictment ("Ind."), ECF No. 1.) He was arrested in
The indictment contains eleven counts:
Count Four: Providing and Concealing Material Support and Resources to Terrorists (The Bly, Oregon Jihad Training Camp), in violation of 18 U.S.C. §§ 2, 956 and 2339A;
Count Five: Conspiracy to Provide Material Support and Resources to a Foreign Terrorist Organization (The Bly, Oregon Jihad Training Camp), in violation of 18 U.S.C. § 2339B
Count Six: Providing Material Support and Resources to a Foreign Terrorist Organization (The Bly, Oregon Jihad Training Camp), in violation of 18 U.S.C. §§ 2, 2339B;
Count Seven: Conspiracy to Provide and Conceal Material Support and Resources to Terrorists (Facilitating Violent Jihad in Afghanistan), in violation of 18 U.S.C. §§ 956, 2339A;
Count Eight: Providing and Concealing Material Support and Resources to Terrorists (Facilitating Violent Jihad in Afghanistan), in violation of 18 U.S.C. §§ 2, 2339A;
Count Nine: Conspiracy to Provide Material Support and Resources to a Foreign
Count Ten: Providing Material Support and Resources to a Foreign Terrorist Organization (Facilitating Violent Jihad in Afghanistan), in violation of 18 U.S.C. § 2339B; and
Count Eleven: Conspiracy to Supply Goods and Services to the Taliban (IEEPA Violations), in violation of 18 U.S.C. § 371,
The indictment alleges that from in or about December 23, 1998, up to and including December 29, 1998, defendant conspired to detain U.S. nationals. (Ind.¶ 1.) As part of this conspiracy, in late 1998, defendant is alleged to have provided a co-conspirator ("Co-Conspirator 1"), the leader of the Abyan faction of the Islamic Army of Aden, and a group of other co-conspirators with a satellite phone. (Id. ¶ 3(a).) On December 27, 2004, defendant is alleged to have received three telephone calls at his home from this satellite phone. (Id. ¶ 3(b).) On or about December 28, 1998, the co-conspirators took sixteen tourists hostage by use of force, including two U.S. nationals. (Id. ¶ 3(c).) That same day, while the hostage taking was in progress, defendant spoke with Co-Conspirator 1 on the satellite phone and gave advice relating to the hostage-taking. (Id. ¶ 3(d).) He also agreed to act as an intermediary. (Id.)
On December 29, 1998, defendant ordered five hundred British pounds worth of additional airtime for the satellite phone being used by the hostage-takers. (Id. ¶ 3(e).) That same day, the Yemeni military attempted to rescue the hostages; during the rescue attempt, hostages were used as human shields; four of the hostages were killed and several others wounded. (Id. ¶ 3(f).)
From in or about October 1999 to early 2000, defendant and others are alleged to have conspired to provide material support to terrorists. (Id. ¶ 5.) In this regard, on several occasions in October 1999, defendant discussed with Co-Conspirator 2 creating a jihad training camp in Bly, Oregon. (Id. ¶ 7(a).) On October 25, 1999, Co-Conspirator 2 communicated with defendant that he and other co-conspirators
In June 2000, defendant is alleged to have conspired with Co-Conspirator 2, a U.S. national, to provide and conceal material support to terrorists by raising money for an individual to travel to Afghanistan to wage violent jihad. (Id. ¶¶ 13, 15.) Co-Conspirator 2 traveled through Manhattan, New York, en route to attempt to collect money in Long Island, New York. (Id. ¶ 15(a).) Co-Conspirator 2 did collect money which was then added to a "migration" or "hijrah" fund maintained by the Finsbury Park Mosque in England. (Id.)
In November 2000, defendant requested that Co-Conspirator 2 accompany another co-conspirator, Co-Conspirator 3, from London, England, to a jihad training camp in Afghanistan. (Id. ¶ 15(b).) Defendant introduced Co-Conspirator 2 to Co-Conspirator 4, to arrange safehouses and lodging in Pakistan, and safe passage and travel into Afghanistan. (Id. ¶ 15(d).) Money from the Finsbury Park Mosque's hijrah fund was used for certain travel expenses thereafter incurred by Co-Conspirators 2 and 3. (Id. ¶ 15(c).) Later that month, Co-Conspirators 2 and 3 did in fact travel to Afghanistan. (Id. ¶ 15(e).)
In late 2000, at the request of defendant, Co-Conspirator 2 delivered compact discs containing defendant's statements to individuals located in the territory of Afghanistan controlled by the Taliban. (Id. ¶ 26(c).)
In March or April 2001, defendant directed Co-Conspirator 3 (who was still in Afghanistan), to seek out a front-line commander of al Qaeda. (Id. ¶ 19(a).) During the period from March through September 6, 2001, defendant and Co-Conspirator 2 discussed plans to set up a computer lab to be located in Kandahar, Afghanistan to service Taliban officials. (Id. ¶ 26(d).) Defendant gave Co-Conspirator 2 six thousand British pounds in furtherance of this project. (Id. ¶ 26(e).)
On September 6, 2001, defendant, assisted by Co-Conspirator 2, posted messages on a website "Supporters of Shariah" or "SOS", urging defendant's followers to donate money, goods and services to Taliban-sponsored programs in the area of Afghanistan controlled by the Taliban. (Id. ¶ 26(a).)
Defendant makes the following arguments in support of dismissal of all counts in the indictment:
In addition, defendant seeks an order requiring the Government to provide a bill of particulars and to strike what he characterizes as "irrelevant and prejudicial surplusage" from the indictment.
Defendant argues that there is an insufficient jurisdictional nexus between defendant and the United States to support Counts One, Two, and Seven through Eleven. He further asserts that applying the statutes underlying these counts to his conduct would violate his Fifth Amendment due process rights.
As to Counts One and Two (the Yemeni hostage-taking), defendant states there are no allegations that he intended to involve the United States. (Def.'s Mem. in Suppt. of Mot. to Dismiss Ind. ("Def.'s Br.") at 6, ECF No. 175.) Similarly, defendant asserts that Counts Seven through Ten also fail to allege a sufficient nexus between the conduct charged and the United States. (Id. at 9.) While defendant acknowledges that these counts allege that Co-Conspirator 2 travelled to the United States to raise money for the Finsbury Mosque's hijrah fund (id. at 9), the "allegations central to this charge, that of facilitating violent jihad in Afghanistan, all took place outside of the United States and exclusively involved and/or were aimed at London, Pakistan and Afghanistan." (Id. at 9-10.)
Finally, with respect to Count Eleven, defendant argues that all of the overt acts alleged were directed at an area of Afghanistan controlled by the Taliban. (Id. at 13-15.)
Defendant misconstrues the now well-established law relating to the extraterritorial application of criminal statutes.
As an initial matter, criminal statutes may have extraterritorial reach. See, e.g., United States v. Siddiqui, 699 F.3d 690, 700 (2d Cir.2012); United States v. Al Kassar, 660 F.3d 108, 118 (2d Cir. 2011); United States v. Yousef, 327 F.3d 56, 86 (2d Cir.2003). Courts first look to the text of a criminal statute to determine whether Congress intended extraterritorial application. Al Kassar, 660 F.3d at 118. However, when a statute is silent courts look to the nature of an offense to determine whether to infer extraterritorial application. Id.
In addition, a statute may be applied extraterritorially when to do so would not violate due process. Id. Whether extraterritorial application violates due process depends on whether there is a sufficient nexus between defendant and the United States such that application would be neither arbitrary nor fundamentally unfair. Id.; see also Yousef, 327 F.3d at 111. In instances in which charged conduct involved non-U.S. citizens and occurred entirely abroad, "a jurisdictional nexus exists when the aim of that activity is to cause harm inside the United States or to U.S. citizens or interests." Al Kassar, 660 F.3d at 118; Yousef, 327 F.3d at 112.
In Al Kassar, the Second Circuit found a sufficient jurisdictional nexus where, as here, the conduct alleged occurred outside of the United States. The Al Kassar court upheld the convictions of the non-U.S. citizen defendants on account of their plans to sell arms to FARC to be used to kill Americans and destroy U.S. property. Al Kassar, 660 F.3d at 118. There, the Court found that the geographical location of the undercover sting operation at issue was "irrelevant" to the sufficiency of the jurisdictional nexus. Id. "If an undercover operation exposes criminal activity that targets U.S. citizens or interests or threatens
Al Kassar leaves no doubt that defendant's arguments regarding the sufficiency of a jurisdictional nexus are without merit. There is no requirement that the indictment contain allegations of defendant's presence in the United States, actual communications into or out of the United States, or transaction of business within the United States. Rather, the determinative issue is whether defendant's actions were calculated to harm American citizens and interests.
Counts One and Two charge violations of § 1203. As stated in that section and recited above, where the conduct alleged occurred outside the United States, there is no violation unless the person seized or detained is a U.S. national. Here, it is alleged that two of the hostages were American citizens. Defendant argues that while this may be true, there is no allegation that he intended to harm the United States or its citizens. However, Defendant's specific intent to harm Americans is not what the law requires. See United States v. Yousef, No. S3 08 CR. 1213(JFK), 2010 WL 3377499 (S.D.N.Y. Aug. 23, 2010); United States v. Yunis, 924 F.2d 1086, 1096 (D.C.Cir.1991)("The statutory language [of the Hostage Taking Act] suggests no intent requirement other than that the offender must act with the purpose of influencing some third person or government through the hostage taking."). Rather, Courts have found a sufficient nexus to exist based upon factors such as the "defendant's citizenship or residency, the location of the acts allegedly giving rise to the suit and whether those acts could be expected to or did produce an effect in the United States." Id. (quoting Goldberg v. UBS AG, 690 F.Supp.2d 92, 106 (E.D.N.Y.2010)). It is also unnecessary that defendant had any expectation that he would be prosecuted in the United States. Al Kassar, 660 F.3d at 119. The facts alleged in the indictment are therefore plainly sufficient.
Counts Seven and Eight both allege violations of 18 U.S.C. § 2339A. Both counts allege conduct that occurred in the United States (a co-conspirator raising funds in the United States, used to pay travel expenses for personnel to travel to a jihad training camp in Afghanistan). This is a sufficient nexus at this stage.
Counts Nine and Ten both allege violations of 18 U.S.C. § 2339B. That statute has an explicit provision allowing for extraterritorial application. In addition, both counts allege that defendant was involved in providing material support to al Qaeda — an organization that the United States had declared presented an unusual and extraordinary threat. There is no doubt that clear statements by al Qaeda to harm the United States made it foreseeable that defendant anticipated that his actions in supporting that organization could harm U.S. persons and interests.
Count Eleven prohibits conduct of goods or services to the Taliban from the United States or from a United States person, wherever located. Co-Conspirator 2 is alleged to be a U.S. national.
In short, each of the counts alleged to have an insufficient nexus between defendant and the United States all concern or relate to terrorists (members of al Qaeda) or the al Qaeda organization. At the time
Nor do the challenged counts violate defendant's due process rights. It is sufficiently clear that the conduct alleged is criminal to eliminate any concerns regarding whether defendant had fair notice that such acts could subject him to criminal prosecution. See United States v. Chestman, 947 F.2d 551, 564 (2d Cir.1991)("The purpose of the `fair notice' requirement of due process is `to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.'") (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954)). In addition, the only cases to have found violations of due process on jurisdictional nexus grounds have done so where there was no allegation of harm to U.S. persons or interests. See United States v. Perlaza, 439 F.3d 1149, 1168 (9th Cir.2006) (due process clause violated in prosecution of foreign crew of foreign flagged vessel where Government presented no evidence that crew, vessel or narcotics had any connection to the United States); United States v. Ali, 885 F.Supp.2d 55, 61 (D.D.C.2012)(same where defendant charged with hostage-taking of a foreign flagged ship and only U.S. connection was presence of American-owned cargo). That is not the case here. In a more analogous case, United States v. Ahmed, No. 10 Cr. 131(PKC), 2011 WL 5041456, at *1 (S.D.N.Y. Oct. 21, 2011), the designation of the Al Shabaab by the U.S. Secretary of State as a terrorist group was sufficient to satisfy due process, given that the defendant either knew it was so designated or knew that it engaged in terrorist activity that targeted U.S. persons and interests. Defendant here is alleged to stand in a similar relationship to al Qaeda; as in Ahmed, defendants alleged knowledge that al Qaeda is a terrorist organization that targets U.S. persons and interests makes his prosecution here neither arbitrary nor fundamentally unfair.
Defendant argues that all counts should be dismissed due to a lack of factual particularity. (Def.'s Br. At 17.) Such particularity is necessary to inform him of the nature and cause of the accusation or to constrain the Government to the facts considered by the grand jury. (Id.) At oral argument on this motion, defendant's counsel conceded that each count faithfully tracks the language of the statute to which it refers (Tr. of May 30, 2013, Hear'g ("Tr.") at 15; see also Def.'s Reply Br. at 12, ECF No. 186), but argued that there are insufficient facts to make out the crimes charged.
Defendant relies on United States v. Pirro, 212 F.3d 86 (2d Cir.2000), for the proposition that in instances in which an indictment is generic, it must nonetheless set forth sufficient particulars to put defendant on notice and to charge a crime.
The counts in the indictment provide sufficient detail. First, Counts One and Two clearly relate to defendant's participation in hostage taking in Yemen and a conspiracy relating to the same. Defendant's argument that the allegation that he was on the telephone and advising the hostage takers in the midst of their criminal acts fails to identify his participation in the crime is simply wrong. Even so, defendant is alleged to have done more: to have equipped the hostage takers with a means of communication — which, for hostage taking to achieve its purposes can be a critical tool — and have purchased additional minutes so that the hostage takers could succeed in their criminal activities (that is, defendant provided additional communications opportunities for the hostage-takers). These assertions more than adequately support the charges under § 1203 in those counts.
Nor is there ambiguity as to the conduct charged in Counts Three and Four: namely, that in October 1999, defendant and Earnest James Ujaama (Co-Conspirator 2) discussed setting up a jihad training camp in Bly, Oregon, and that Co-Conspirator 2 communicated to defendant that he was stockpiling weapons and ammunition in the United States. Defendant argues that these allegations are insufficient to identify any "material support" or criminal conduct. (Def.'s Br. at 19-20.) Rather, he suggests, the mere creation of a jihad training camp may be perfectly lawful. (Id.)
In the context of the conduct alleged in the indictment, the Court disagrees. Indictments are to be read as a whole. As such, acts that may themselves be lawful are punishable if performed in furtherance of a conspiracy (or, here, if they constitute material support). See Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 87 L.Ed. 23 (1942)("The overt act ... need not be itself a crime.") There is thus no serious doubt that the creation of a jihad training camp in 1999 and 2000 by a supporter of al Qaeda (an organization which had been designated as a "foreign terrorist organization"), and the stockpiling of weapons in connection with the same, are sufficient to state a claim for the provision of material support and resources to terrorists under 18 U.S.C. §§ 2 and 2339A.
For the same reasons, Counts Five and Six are also sufficient; the only difference
Counts Seven and Eight quite clearly allege providing and concealing material support and resources to terrorists; they allege defendant engaged in a conspiracy to raise money for a "hijrah" or migration fund. The alleged intent of raising that money was to withdraw it from the fund and to pay for others to travel to Afghanistan, where they would join with a follower of defendant and undergo training at a jihadist camp. Counts Nine and Ten (as with Five and Six) allege the same conduct provided material support and resources to a foreign terrorist organization, al Qaeda.
At oral argument, the Court and counsel discussed whether the material support alleged was the currency raised or the personnel sent (that is, the money raised in the United States and added to the hijrah fund or the individuals who were tasked to go to Afghanistan to join the jihad training camp). The statute allows for both to constitute material support, and the Government stated in argument that it was asserting both. (Tr. at 23.)
Defendant's counsel argued that because money is fungible, once it is added to the hijrah fund, it can no longer be determined whether that money was used to provide material support to terrorism or for a legitimate purpose. (Tr. at 18-19.) Therefore the indictment's allegations that defendant participated in the fundraising cannot be connected to the criminal act — i.e., funding travel of personnel to Afghanistan. (Id.)
However, again reading the indictment as a whole, the conduct charged can be read to allege that the purpose of those funds was to further the conspiracy. The specific facts relating to how the cash was raised and used — and how the hijrah fund may have been handled — are therefore fact issues properly left for trial. In addition, the provision of personnel is an entirely separate basis for material support from the provision of currency — either one of which is sufficient to support the charges. At this stage, the indictment sufficiently alleges conduct which could, if proven, constitute criminal violations.
Count Eleven charges defendant with conspiring to violate 50 U.S.C. § 1705(b), the International Emergency Economic Powers Act ("IEEPA"), which proscribes conduct including the provision of funds, goods, and services to entities whose property has been blocked by Executive Order. Specifically, the indictment alleges that from the Spring of 2000 through September 6, 2001, defendant and his coconspirators used a website to urge followers to donate money, goods and services to Taliban-sponsored programs in Afghanistan and that defendant provided funds for the creation of a computer lab for the Taliban in Afghanistan. At this time, a Presidential Executive Order had blocked the Taliban under IEEPA upon a finding that the Taliban constituted an unusual and extraordinary threat to the national security and foreign policy of the United States. There can be little real doubt that the conduct set forth in the indictment fairly notifies defendant of the criminal conduct in which he is alleged to have engaged with respect to the statutes at issue in Count Eleven — he is alleged to have provided direct and indirect monetary assistance and goods to an IEEPA-blocked entity, the Taliban.
Defendant argues that Counts Three, Four, Seven and Eight, which all charge violations of 18 U.S.C. § 2339A, should be dismissed because each count fails to articulate the underlying § 956 conspiracy that constitutes an element of the offense charged. (Def.'s Br. at 29.) Defendant's argument is without merit.
Each of Counts Three, Four, Seven and Eight are adequately pled; the statutory elements necessary to be set forth are set forth. To the extent that defendant is really complaining about the lack of additional factual description, that is, as discussed throughout this opinion, also without merit. Each of the conspiracy counts clearly charges a conspiracy relating to the substantive conduct in the following count — that is neither unusual nor improper.
United States v. Sattar, 314 F.Supp.2d 279 (S.D.N.Y.2004), the sole case cited by defendant in support of this argument, actually undermines defendant's position. In that case, the court rejected a similar vagueness argument in the context of a § 2339A and § 956 claim. Id. at 303. There, the court stated the long established proposition that an indictment need do little more than track the statute, and that it had been done there. Id. Here, as well, the conspiracy and substantive charges track the statutory language and are sufficient to apprise defendant of the charges against him and to prevent double jeopardy.
Defendant argues that a number of counts are paired and multiplicitous — and that the Government must therefore elect which to pursue. In particular, he asserts that Counts Three and Five, Four and Six, Seven and Nine, and Eight and Ten are multiplicitous. (Def.'s Br. at 61.)
As set forth in the description of the counts above, in each instance, the paired count charges a conspiracy to do the substantive act charged in the following count. Thus, for instance, Count Three charges "Conspiracy to Provide and Conceal Material Support and Resources to Terrorists (The Bly, Oregon Jihad Training Camp)", in violation of 18 U.S.C. §§ 956 and 2339A. Count Four charges "Providing and Concealing Material Support and Resources to Terrorists (The Bly, Oregon Jihad Training Camp)", in violation of 18 U.S.C. §§ 2, 956 and 2339A. The other "pairings" are similar in nature.
A multiplicity challenge is based on the Fifth Amendment's prohibition against double jeopardy. U.S. Const. Amend. V. The Double Jeopardy clause provides that no person shall "be subject for the same offense to be twice in jeopardy of life or limb." Id. This provision prohibits a second prosecution for the same offense following an acquittal, a second prosecution for the same offense following a conviction, and against the imposition of multiple punishments for the same offense. See Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980).
In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court established that the test of multiplicity is whether "there is an element in each offense that is not contained in the other". The Blockburger test looks to the language of the statute itself, recognizing that "a single transaction can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause." Albernaz v. United States, 450 U.S. 333, 344 n. 3, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); see also Harris v. United States, 359 U.S. 19, 79 S.Ct. 560, 3 L.Ed.2d 597 (1959). "The appropriate inquiry under Blockburger is
It is well established that the Double Jeopardy clause does not prohibit simultaneous prosecutions for the same offense; it prohibits duplicative punishment. See United States v. Josephberg, 459 F.3d 350, 355 (2d Cir.2006); see also United States v. Ghavami, No. 10 Cr. 1217(KMW), 2012 WL 2878126, at *10-11 (S.D.N.Y. July 13, 2012); United States v. Jahedi, 681 F.Supp.2d 430, 436-37 (S.D.N.Y.2009). Accordingly, multiplicity is properly addressed by the trial court at the sentencing stage. Ball, 470 U.S. at 864-65, 105 S.Ct. 1668.
Ball presented a classic example of multiplicity. There, a previously convicted felon was charged in separate counts with receipt and possession of a firearm. Id. at 857, 105 S.Ct. 1668. After the defendant was convicted on both counts, the Supreme Court remanded to the district court with instructions to vacate one of the two convictions. Id. at 865, 105 S.Ct. 1668,
This Court will not engage in a multiplicity inquiry at this time. In accordance with Second Circuit precedent, any such issues may be raised post-trial.
Defendant moves for an order requiring the Government to provide a bill of particulars. (Def.'s Br. at 32.) Defendant argues that in the absence of additional factual detail, not contained in the indictment, he will be unable to prepare his defense and would have an insufficient basis to make double jeopardy challenges to potential future charges. (Id. at 33.) In particular, defendant argues that a bill of particulars is necessary to distinguish between the multiplicitous counts and to describe the manner, content and parties involved in the communications and acts alleged so that he may conduct an investigation of the charges against him. (Id. at 34.) Defendant argues that the volume of discovery, geographical scope and temporal nature of the conduct are factors weighing in favor of a bill of particulars. (Def.'s Br. at 14; Tr. at 36-37.)
Defendant then provides a 16-page list consisting of 42 paragraphs and dozens of subparts, which makes specific requests for information. (Id. at 38-54.)
Rule 7(f) of the Federal Rules of Criminal Procedure provides that:
Fed.R. Crim.P. 7(f). "A bill of particulars is required `only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused.'" United States v. Walsh, 194 F.3d 37, 47 (2d Cir.1999)(quoting United States v. Torres, 901 F.2d 205, 234 (2d Cir.1990), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990).)
A bill of particulars is also unnecessary when the Government has produced materials in discovery concerning the witness and other evidence. Id. In Torres, the Second Circuit affirmed the district court's denial of a bill of particulars in part because the defendants were provided with considerable evidentiary detail outside of the indictment. Torres, 901 F.2d at 234; see also United States v. Panza, 750 F.2d 1141, 1148 (2d Cir.1984). Thus, in determining whether to order a bill of particulars, a court must examine the totality of the information available to defendant, both through the indictment and through pre-trial discovery. United States v. Bin Laden, 92 F.Supp.2d 225, 233 (S.D.N.Y.2000). The purpose of the bill of particulars is to avoid surprise at trial and give defendant sufficient information to meet the charges against him. Id. (quoting Torres, 901 F.2d at 234).
In Bin Laden, the court granted the defendants' motion for a bill of particulars. There, however, the indictment charged 15 named defendants with 267 discrete criminal offenses, it charged certain defendants with 229 counts of murder, it covered a period of nearly ten years, and it alleged overt acts in 12 countries. Bin Laden, 92 F.Supp.2d at 234. The court noted that the "geographical scope of the conspiracies charged in the indictment is unusually vast." Id. At oral argument on this motion, defense counsel cited Bin Laden as supportive of ordering a bill of particulars here because, in Bin Laden, there was far more detail in the 144 count indictment than exists here. (Tr. at 64.) This Court disagrees.
At numerous conferences in this case, the Court and counsel have discussed the nature and volume of discovery. (See, e.g., Hear'gs of Oct. 9, 2012; Oct. 26, 2012; Dec. 14, 2012; Jan. 14, 2013; Mar. 7, 2013; Mar. 15, 2013; May 30, 2013.) That discovery includes a large number of audio recordings of defendant's speeches, computer hard drives, documents in English and in Arabic, and other physical evidence. The Government also noted at oral argument on this motion that the transcript of the testimony of one of defendant's alleged co-conspirators, Earnest James Ujaama (referred to in the indictment here as "Co-Conspirator 2"), at the trial in United States v. Kassir
Defendant argues that references to al Qaeda as being led by Osama Bin Laden and broadening phrases such as "others known and unknown," "among others," and "elsewhere" should be stricken from the indictment as surplusage both irrelevant and prejudicial to defendant. (Def.'s Br. at 55.) At oral argument on this motion, counsel agreed that "we have a significant amount of time before trial to iron this out." (Tr. at 9.)
Defendant correctly notes that rule 7(d) of the Federal Rules of Criminal Procedure provide that, upon motion by defendant, the Court may strike extraneous matter or surplusage from an indictment. (Def.'s Br. at 56.) However, "`[m]otions to strike surplusage from an indictment will be granted only where the challenged allegations are not relevant to the crime charged and are inflammatory or prejudicial.'" United States v. Mulder, 273 F.3d 91, 99 (2d Cir.2001)(quoting United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir.1990)).
Courts have held that statements providing background are relevant and need not be struck. Id. at 100 (in action charging extortion relating to labor coalitions, upholding district court's decision not to strike background on tactics and purposes of labor unions),
In United States v. Kassir, S2 Cr. 04 Cr. 356(JFK), 2009 WL 995139 (S.D.N.Y. Apr. 9, 2009), the defendant was also charged with conspiring and providing material support to al Qaeda. Id., at *1. He similarly moved to strike what he characterized as surplusage from the indictment that included language referring to Usama Bin Laden as the leader of al Qaeda. Id. Kassir also objected to the same broadening phrases as those used in the indictment here. Id., at *1 (moving as to "with others known and unknown", "and elsewhere", "and others," and "among other things.") In Kassir. the Court denied the motion to strike, holding that references to al Qaeda being led by Bin Laden were relevant to the leadership and organization of the entity for which the defendant was charged with providing support, and was also admissible as background information. Id., at *2. In addition, the court found that "the Government plans to offer evidence that Defendant committed the charged conduct with the intent to support Bin Laden, which is relevant to the inference that Defendant also intended to support al Qaeda." Id. The court further found that "Defendant's express intent to support al Qaeda's leader would lend a strong inference of support for the organization itself and would not be unfairly prejudicial in the least." Id. The Court finds the same rationale applies here.
As to broadening phrases, surplusage may be struck if it impermissibly expands the charge. Id., at *3 (citing United States v. Pope, 189 F.Supp. 12 (S.D.N.Y. I960).) In Pope, the court found that
In support of his motion, defendant does no more than assert that broadening language appears in the indictment. (See, e.g., Def.'s Br. at 60-61.) He does not address the issue at all in his reply brief. In Kassir, the court declined to strike all but one challenged phrase. 2009 WL 995139, at *4. The court found that the fact that the defendant was charged with having committed the charged offenses with others "known and unknown" was relevant and not inflammatory, and noted that there is no prohibition to an indictment referring to unindicted, unnamed coconspirators. Id. In terms of the phrase "among others," the court noted that the law does not require that an indictment set forth every act committed by the conspirators in furtherance of the conspiracy. Id. (citing United States v. Cohen, 518 F.2d 727, 733 (2d Cir.1975)). The Government consented to remove one phrase ("among other things"), but that phrase was not used in the same manner as in the indictment here. Id.
These surplusage issues need not be fully addressed at this time, however. Courts in this district routinely await presentation of the Government's evidence at trial before ruling on a motion to strike. See, e.g., Scarpa, 913 F.2d at 1012; Ahmed, 2011 WL 5041456, at *3; United States v. Persico, 621 F.Supp. 842, 861 (S.D.N.Y.1985).
In Ahmed, defendant's motion to strike surplusage related to background information regarding civil and sectarian violence in Somalia and the anti-American animus of Al Shabaab, which was designated by the Secretary of State as a "foreign terrorist organization." Ahmed, 2011 WL 5041456, at *2. The court held that it would await presentation of the Government's evidence at trial, and stated further that the Government would have some latitude to "demonstrate the nexus between defendant's conduct and American interests, as well as the background of others who are members of the charged conspiracies." Id., at *3. The Court noted that denial of the motion without prejudice to renew might also allow the parties to reach a pre-trial stipulation, as had occurred in United States v. Yousef, 2011 WL 2899244 (S.D.N.Y. June 30, 2011). Ahmed, 2011 WL 5041456, at *3. Here, as in Ahmed, the Court will await the Government's presentation at trial.
For the reasons set forth above, defendant's motion to dismiss the indictment, or any count thereof, is denied. Defendant's motion for a bill of particulars is denied. Defendant's motion to strike surplusage is denied with leave to renew.
The Clerk of Court is directed to terminate the motion at ECF No. 31.
SO ORDERED.
On August 30, 2013, this Court issued an Opinion & Order denying defendant Mostafa Kamel Mostafa's motion to dismiss all counts in the Indictment against him. (ECF No. 199.) On that same day, the Second Circuit issued its decision in United States v. Vilar, 729 F.3d 62 (2d Cir. 2013). Defendant has moved for reconsideration of this Court's August 30 Opinion & Order as to Counts Seven-Ten, on the basis that Vilar constitutes an intervening change in controlling law. (ECF No. 212.)
For the reasons set forth below, the Court denies defendant's motion for reconsideration.
Vilar concerns the question of whether criminal liability under Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), extends to conduct where the transaction(s) at issue was or were in connection with an extraterritorial purchase or sale of securities. Vilar, 729 F.3d at 67-68. The Second Circuit held that Section 10(b) and its implementing regulation, Rule 10b-5, 17 C.F.R. § 240.10b-5, do not apply to extraterritorial conduct, whether liability is sought civilly or criminally. Id. The Court found that the Supreme Court's decision in Morrison v. National Australia Bank, Ltd., 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010), applies to criminal cases brought pursuant to Section 10(b) and Rule 10b-5.
In Vilar, depending on one's perspective, the Second Circuit either confirmed the appropriate reading of certain case law, or altered the landscape with respect to presumptions regarding the extraterritorial application of criminal statutes. Previously, cases had frequently stated that the presumption against the extraterritorial application of civil statutes does not apply in the criminal context. See, e.g., United States v. Siddiqui, 699 F.3d 690, 700 (2d Cir.2012) ("The ordinary presumption that laws do not apply extraterritorially has no application to criminal statutes."); United States v. Al Kassar, 660 F.3d 108, 118 (2d Cir.2011) ("The presumption that ordinary acts of Congress do not apply extraterritorially ... does not apply to criminal statutes."). Such cases routinely cited United States v. Bowman, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149 (1922). See Siddiqui, 699 F.3d at 701; Al Kassar, 660 F.3d at 118. The Second Circuit stated that Bowman had been overread — and that, in reality, its holding is properly limited to the proposition that the Government has a right to defend itself outside of domestic territory. Id. at 72-74.
In moving away from this broad language, the Second Circuit stated that such cases — and all other cases — must be understood in context and with particular attention to the underlying statutes. Vilar, 729 F.3d at 73-74. Accordingly, Bowman requires that the relevant statutes either "contain a clear indication of Congress's intent to provide for extraterritorial application or relate to crimes against the United States government." Id.
The Second Circuit further stated that "[t]he presumption against extraterritoriality is a method of interpreting a statute, which has the same meaning in every case.... A statute either applies extraterritorially or it does not, and once it is determined that a statute does not apply extraterritorially, the only question we must answer in the individual case is whether the relevant conduct occurred in the territory of a foreign sovereign." Id. at 74. That is, in the absence of statutory intent providing for extraterritorial application, the only question left is whether the conduct at issue was domestic or not.
Defendant argues that Vilar undermines this Court's rationale for finding that a sufficient nexus exists between Mostafa
Defendant misreads the Court's August 30 Opinion and also incorrectly reads the statutes at issue.
Counts Seven and Eight are both based on 18 U.S.C. §§ 956 and 2339A. (ECF No. 1.) Count Seven alleges a Conspiracy to Provide and Conceal Material Support and Resources to Terrorists, and Count Eight alleges the provision (or aiding and abetting the provision) of such support and resources. (Id.)
As an initial matter, there is a sufficient domestic nexus between the allegations in Counts Seven and Eight to avoid the question of extraterritorial application altogether. Overt acts occurred in the United States. As this Court previously found, the counts allege that a co-conspirator raised funds in the United States and used them to pay travel expenses for personnel to travel to a jihad training camp in Afghanistan. (ECF No. 199 at 10-11.)
In addition, in October 2001 — during the period of the charged conspiracy — Congress removed a specific limitation of 18 U.S.C. § 2339A to U.S. conduct. See 18 U.S.C. § 2339A (amended 2001). This specific and careful removal of a required occurrence within the United States indicates a congressional intent for extraterritorial application. See American Land Title Ass'n v. Clarke, 968 F.2d 150, 152 (2d Cir.1992) (explaining that an amendment to a statute that omits certain provisions "almost always reflects Congress's intent").
Even in the absence of this demonstrated intent that § 2339A applies extraterritorially, and even in the face of no textual direction as exists here, the Court could nonetheless infer congressional intent for extraterritorial application from the nature of the offense. Al Kassar, 660 F.3d at 118. Here, due to the combination of U.S. contacts by virtue of the fundraising occurring in the U.S. together with the allegations of connection to al Qaeda — an entity whom this country had deemed a security threat to the United States, its interests, and people — the statute and its application to the facts alleged in the Indictment here clearly meet the standards for extraterritorial application set forth in Vilar.
Finally, § 2339A requires an underlying violation of 18 U.S.C. § 956. Section 956 explicitly prohibits a conspiracy with another person or persons, "regardless of where such other person or persons are located, to commit at an place outside the United States an act that would constitute an offense of murder, kidnapping, or maiming if committed in ... the United States." 18 U.S.C. § 956. Section 956
Accordingly, Vilar does not alter this Court's rationale or decision.
Counts Nine and Ten are both based on statutes that have an explicit provision for extraterritorial application: 18 U.S.C. § 2239B. Count Nine alleges a Conspiracy to Provide Material Support and Resources to a Terrorist Organization (rather than a person, as in Counts Six and Seven), as well as providing such material support and resources. (ECF No. 1.) Subsection (d) of § 2339B states: "There is extraterritorial Federal jurisdiction over an offense under this section." 18 U.S.C. § 2339B(d).
Defendant argues that, as with the removal of the U.S. limitation in § 2339A, subsection (d) was not added to the statute until October 26, 2001. This is incorrect. Subsection (d) was included in the statute in 1996. See Antiterrorism & Effective Death Penalty Act of 1996, Pub.L. No. 104-132, Title III, § 303(a), 110 Stat. 1214 (1996) (subsection (d) included in the statute at that time). In addition, the offense charged pursuant to this statute, under which the defendant is alleged to have been in a conspiracy to provide or to have provided material support to al Qaeda, is certainly conduct in which protection of the U.S. government, interests and persons is implicated.
For the reasons set forth above, the motion for reconsideration is DENIED.
The Clerk of the Court is directed to terminate the motion at ECF No. 199.
SO ORDERED.
Id. No single factor is determinative. Estrada, 320 F.3d at 180-81.
