Anthony J. Trenga, United States District Judge.
On October 25, 2016, the Court found Defendant Muna Osman Jama ("Jama") guilty on Counts One through Twenty-One of the superseding indictment and Defendant Hinda Osman Dhirane ("Dhirane") guilty on Counts One and Sixteen through Twenty-One and not guilty on Counts Two through Fifteen of the superseding indictment. The Court's verdict followed the presentation of evidence during a nonjury trial held on July 14-18, 2016, supplemental briefing on defendants' Rule 29 motion for a judgment of acquittal, and closing arguments on October 12, 2016. Immediately before the Court returned its verdict, Defendant Jama made an oral motion on October 25, 2016 pursuant to Federal Rule of Criminal Procedure 23(c) requesting that the Court state its specific findings of fact.
On June 26, 2014, a grand jury returned a twenty-one count superseding indictment against Defendants Jama and Dhirani, together with Codefendant Farhia Hassan ("Hassan"), who was arrested in the Netherlands
Defendants waived trial by jury, and the Court held a bench trial beginning on July 11, 2016. On July 14, 2016, after the United States rested its case in chief, Defendant Jama moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. [Doc. No. 232.] The Court reserved decision on the motion.
Count One of the superseding indictment alleges that "[f]rom at least in or about February 2011" and continuing through the date of the superseding indictment, Jama and Dhirane, together with Codefendants Mohamed, Hassan, and Abdullahi, conspired with each other and with others "knowingly to provide material support and resources to a foreign terrorist organization, that is, al-Shabaab," in violation of 18 U.S.C. § 2339B. The superseding indictment further alleges that in furtherance of the conspiracy, Jama and Dhirane and their co-conspirators engaged in a series of twenty-six transfers of funds, beginning on February 8, 2011 with a transfer from Jama to Mohamed and ending on January 23, 2013 with a transfer from Dhirane to Daahir Abdi.
Counts Two through Twenty-One of the superseding indictment allege that on specific dates, a defendant or co-conspirator transmitted or attempted to transmit a particular amount of money to a particular individual, thereby providing material support or resources to al-Shabaab in violation of 18 U.S.C. § 2339B. These counts
At the time the events in this case took place, Title 18 of the United States Code, Section 2339B(a)(1) provided that:
"Material support or resources" is defined as:
18 U.S.C § 2339A(b)(1).
In order to convict a particular defendant of conspiracy to provide material support to a foreign terrorist organization, as alleged in Count One, the United States must prove beyond a reasonable doubt the following elements: (1) two or more persons entered into an agreement that had as its objective providing material support or resources to a foreign terrorist organization in violation of 18 U.S.C. § 2339B; (2) the defendant knew that the objective of the agreement or the means by which it was to be accomplished was unlawful; and (3) the defendant knowingly and voluntarily became a part of that agreement. See U.S. v. Jimenez Recio, 537 U.S. 270, 274, 123 S.Ct. 819, 154 L.Ed.2d 744 (2003) ("The Court has repeatedly said that the essence of a conspiracy is "an agreement to commit an unlawful act.'") (quoting Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975)); U.S. v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996). In order to prove that a defendant knowingly and voluntarily joined the conspiracy, the United States must prove that the substance of their agreement contemplated conduct that satisfied the elements of a substantive offense under Section 2339B.
In order to convict each Defendant of the substantive offense of providing material support or resources to an FTO in violation of Section 2339B, as alleged in Counts Two through Twenty-One, the government must prove beyond a reasonable doubt the following elements: (1) the
The Court has jurisdiction as to each count with respect to each Defendant if, among other grounds, she is a national of the United States, she is an alien lawfully admitted for permanent residence in the United States, the offense occurs in whole or in part within the United States, or the offense occurs in or affects interstate or foreign commerce. 18 U.S.C. § 2339B(d).
The case involves inherently difficult issues of proof because of the secretive and amorphous nature of terrorist organizations, the limited transparency concerning the specific roles and associations of particular persons, and the limited practical ability to trace the extraterritorial movement of specific funds for specific purposes. Here, there is substantial direct evidence, principally in the form of recorded chatroom statements by Defendants and others. But the probative value of that evidence is limited and has to be considered with other circumstantial evidence, including the timing of the alleged transfers relative to actual events involving AS and the reasonable inferences that can be drawn from that evidence. The Court must also consider expert testimony concerning the nature of AS's operations, its known leadership, and those who are associated with its operations. Based on all of the evidence and the Court's assessment of the credibility of the witnesses and the weight to be given any particular piece of evidence, together with reasonable inferences drawn from that evidence, the Court makes the following findings of fact:
The defendants, through counsel, concede they were involved in providing funds to particular people in order to assist AS in certain limited ways. The central factual and legal issue with respect to Count One is whether the substance of Defendants' agreement to provide those funds had as its objective providing unlawful material support and resources to an FTO in violation of Section 2339B. Dispositive of that issue is whether these Defendants thought and intended as part of their agreement that the funds that would be delivered to certain individuals would be funds delivered to AS or to individuals who acted as conduits for the delivery of these funds or other unlawful material support to AS. For the purposes of Count One, it is immaterial whether defendants were, in fact, successful in doing so.
While not disputing that they intended to provide certain assistance that would benefit AS, Defendants contend that the substance of their agreement was simply to provide funds to persons who supported, but were independent of, AS, who, in turn, would provide exempted medical assistance to AS. Similarly, Defendants contend that their fundraising activities and their transmission of the alleged funds were done through persons they believed to be entirely independent of AS and for purposes the Defendants believed were lawful. In this regard, Defendants contend that what they intended to provide, and what they did in fact provide with the funds they sent to persons independent of AS, was "medicine" or other lawful assistance to AS as well as to those not part of AS such as orphans. In support of that position, Defendants argue that the term "medicine" is required to be defined broadly both as a matter of statutory construction within the overall context of Section 2339B and related statutes and also in order to be consistent with customary international law and the United States' treaty obligations. By way of summary, Defendants argue, based on these contentions, that the money they agreed to provide was not material support or resources because (1) they did not intend to deliver these funds to AS or anyone who could be considered part of AS; and (2) they intended and expected that the persons who they agreed would receive the funds would use the funds only to provide to AS exempted medicine or other medical-related care that should be considered within the scope of the exemption for "medicine" under the definition of "material support or resources."
There is surprisingly little case law concerning by what standard to determine whether a particular individual is sufficiently associated with an FTO to constitute the organization itself. It appears that no decision of the Supreme Court, Fourth Circuit, or any other circuit court has addressed explicitly what showing is legally adequate to constitute delivery of funds or other material support to an FTO under Section 2339B. In United States v. Ali, 799 F.3d 1008 (8th Cir. 2015), the Eighth Circuit considered facts very similar to those in this case involving fundraising for al-Shabaab through Internet chatrooms, but the court did not consider specifically whether the persons to whom the defendants delivered their funds were part of AS, as that issue was not raised on appeal. The Eighth Circuit therefore had no occasion to articulate a specific legal test. Likewise, in Holder v. Humanitarian Law Project, 561 U.S. 1, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010), the Supreme Court considered various constitutional challenges
Defendants argue for a test that requires that a particular individual operates under what they call the "command and control" of recognized AS leadership before that individual may be deemed a part of AS for the purposes of the material support statute. In support of that position, Defendants rely on cases that consider who should be deemed an enemy combatant or a non-privileged belligerent. They also contend that only someone who is judged a "member" of AS, as opposed to a "supporter," "financier," or "facilitator," should be considered part of the organization. In support of that position, they point to the matrix of designations used by the United Nations, as referenced in expert testimony presented by the United States, which distinguishes between a "member" of an FTO and a "supporter," "financier," or "facilitator."
The government proposes a much less formal test, akin to that used to determine whether someone is part of a criminal enterprise under the Racketeer Influence and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968, or other federal statutes. See, e.g., 18 U.S.C. § 1961(4) (An "enterprise" includes any individual ... or group of individuals associated in fact although not a legal entity.").
Although the material support statute does not specifically define or address who is part of an FTO, it does have other terms that are either defined or have been construed in ways that are useful in fashioning a test to determine whether someone is sufficiently acting for or on behalf of an FTO to be deemed a part of the FTO. For example, Section 2339B(h) explains that providing prohibited "personnel" involves providing a physical person, which may include himself or herself, who "work[s] under that terrorist organization's direction or control or ... organize[s], manage[s], supervise[s], or otherwise direct[s] the operation of that organization." That subsection further provides that "[i]ndividuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization's direction or control." On the one hand, Congress plainly intended for courts to consider the nature of an individual's actions broadly in relation to the overall goals of the terrorist organization
The Court concludes that, for the purposes of Section 2339B, a person is to be deemed part of an FTO if that person is engaged in significant activity on behalf of an FTO relative to that FTO's goals and objectives, a determination to be made on the basis of all of the facts and circumstances pertaining to an individual's relationship with an FTO. To determine whether and to what extent a particular individual is acting on behalf of an FTO, in this case al-Shabaab, the Court has considered the following non-exclusive (and somewhat overlapping) factors: (1) the nature of the assistance provided or received by the individual (whether lawful or unlawful) and how it benefitted the FTO or otherwise advanced its goals and objectives; (2) for what time period the support or resources were provided; (3) whether the individual undertakes his or her activities specifically and exclusively for the benefit of the FTO or whether the individual undertakes similar activities for other organizations or for the public at large; (4) the degree to which the individual's actions are directed by or coordinated with others associated with the FTO or any of its generally recognized representatives; (5) the nature and extent of the individual's contacts within the FTO or with others acting on behalf of the FTO, including access to the FTO's leadership and to non-public information pertaining to the FTO's activities; (6) whether the individual self-identifies with the FTO, represents himself or herself as being part of the FTO, or purports to act on behalf of the FTO; and (7) whether the individual is reliably identified as being part of an FTO by recognized international law enforcement or other organizations. Rarely would the evidence bear on all, or even most, of these factors. In some cases, there may be sufficient evidence in just one of these categories to demonstrate an adequate link between a person and an FTO so as to establish that the individual undertook significant activities on behalf of the organization and should therefore be deemed part of that organization.
Here, Defendants Jama and Dhirane, as well as Mohamed and Abdullahi, all engaged
Jama and Dhirane also played such central coordinating, facilitating, and supervisory roles with respect to the Group of Fifteen and the ISDAC chatroom that they were also operationally integrated into AS as part of its fundraising network. Therefore, they, too, were engaged in significant activities on behalf of AS and also constituted parts of AS for the purposes of the material support statute. Both kept books and records with respect to their AS fundraising, were actively involved in raising and transmitting the funds they raised, and maintained and promoted active relationships with not only Mohamed, Abdullahi, and others already described, but also with other known and recognized representatives and spokespersons for AS. In short, the Group of Fifteen itself was part and parcel of AS's fundraising network and was integrated organizationally into AS's structure as an FTO.
For the above reasons, as well as those placed on the record in open court, Defendants knowingly and willingly entered into an agreement to provide money to AS, which they knew was an FTO. It is therefore unnecessary for the Court to determine whether the assistance provided to AS fell within the "medicine" exemption.
In rendering its verdict, the Court has considered Defendants' position that in light of the First Amendment issues that would otherwise exist, the United States must prove a non-speech protected overt act in furtherance of the conspiracy, even though the statute does not explicitly require such an overt act, and, therefore, such an act would not ordinarily be required. In Humanitarian Law Project, the Supreme Court made clear that independent advocacy is protected and cannot be the basis for a conviction under Section 2339B, but it also made clear that the statute punishes conduct, not speech. 561 U.S. at 25-26, 130 S.Ct. 2705. There is no First Amendment restriction on considering speech to determine knowledge and intent with respect to the prohibited conduct. Likewise, and not withstanding any First Amendment protections for the expressive conduct imbedded in financial donations, "in prohibiting the particular forms of support that plaintiffs seek to provide to foreign terrorist groups, § 2339B does not violate the freedom of speech." Id at 39, 130 S.Ct. 2705. Here, Defendants agreed to engage in prohibited conduct and are not being punished for their advocacy but rather for their actions. For all these reasons, Congress's prohibition of the particular forms of support that Defendants agreed to provide does not violate any First Amendment rights, and there is no need to incorporate into a conspiracy charge under Section 2339B a non-speech protected overt act in order to avoid any infringement on constitutionally protected speech.
Although the United States did not prove Dhirane personally transmitted any of the funds alleged in Counts Two through Twenty-One, it nevertheless seeks Dhirane's conviction on those same counts based on Pinkerton liability. The Pinkerton liability doctrine provides that "the overt act of one partner in crime is attributable to all." Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 90 S.Ct. 1489 (1946). In other words, "[t]he Pinkerton doctrine makes a person liable for substantive offenses committed by a co-conspirator when their commission is reasonably foreseeable and in furtherance of the conspiracy." United States v. Ashley, 606 F.3d 135, 142-43 (4th Cir. 2010). Although each defendant must have some knowledge of the conspiracy, each individual co-conspirator need not be aware of its full scope in order to be deemed guilty for the acts of other members. See, e.g., United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993).
The United States has proven beyond a reasonable doubt that Dhirane knowingly and intentionally joined the alleged conspiracy no later than April 2012, with knowledge of the scope and nature of the conspiracy as well as that its purpose was unlawful. Jama's transfers of funds to AS as alleged in Counts Sixteen through Twenty-One occurred after Dhirane joined the conspiracy and were reasonably foreseeable and within the scope of the conspiracy that she knowingly and willingly joined. The Court therefore finds Dhirane guilty of providing material support in violation of Section 2339B, as charged in Counts Sixteen through Twenty-One, under Pinkerton liability based on Jama's convictions on those same counts.
At trial, the Court reserved decision on Jama's Rule 29 Motion for Judgment of Acquittal, which she initially made after the close of the government's case in chief on July 14, 2016 [Doc. No. 232] and later renewed. On September 9, 2016, Dhirane moved to adopt and join this motion and the memoranda in support filed by Jama. [Doc. No. 248.] The Court granted that motion in open court on October 25, 2016.
Federal Rule of Criminal Procedure 29 provides that, after the government closes its case in chief, "the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). In considering a motion for judgment of acquittal pursuant to Rule 29, the dispositive inquiry is whether "as a matter of law the government's evidence is sufficient `to establish factual guilt' on the charges in the indictment." United States v. Alvarez, 351 F.3d 126, 129 (4th Cir. 2003) (quoting Smalis v. Pennsylvania, 476 U.S. 140, 144, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986)). When reviewing the sufficiency of the evidence, the Court "must consider circumstantial as well as direct evidence, and allow the government the benefit of all reasonable inferences from the facts proven to those sought to be established." United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). Importantly, the Court does not assess the credibility of witnesses and resolves direct contradictions in testimony in the government's favor. See, e.g., United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998); United States v. Arrington, 719 F.2d 701, 704 (4th Cir. 1983).
Here, the evidence as it existed at the close of the government's case in chief was
For the reasons set forth above, the Court finds Defendant Jama GUILTY as charged in Counts One through Twenty-One and Defendant Dhirane GUILTY as charged in Counts One and Sixteen through Twenty-One and NOT GUILTY as charged in Counts Two through Fifteen. The Court also OVERRULES Defendant Jama's evidentiary objections [Doc. No. 233], DENIES Defendant Jama's Rule 29 Motion for Judgment of Acquittal [Doc. No. 232], DENIES Defendant Dhirane's Rule 29 Motion as to Counts One and Sixteen through Twenty-One, and GRANTS Defendant Dhirane's Rule 29 Motion as to Counts Two through Fifteen [Doc. No. 232]. The United States' "Motion for a Verdict Before Ruling on Defendants' Untested Legal Theories in Their Closing Arguments or on Defendants' Rule 29 Motion Based Upon the Geneva Conventions" [Doc. No. 258] is DENIED as moot.
The Clerk is directed to forward copies of this Memorandum Opinion and Findings of Fact in Support of Verdict to all counsel of record.
