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Comments on Criminal Issues
August 1, 2007
DEFENDING TERRORISM CRIMES
Criminal Defense Lawyers Begin Fight with Aggressive Pretrial Litigation
United States v. Abdi
Defending any criminal case is a monumental undertaking, even those seemingly “open-and-shut” cases. But defending a terrorism case demands not only the utmost professional skill but a reserve of personal courage. A criminal defense lawyer in a terrorism case understands at the outset that the Government will bring to bear all its awesome prosecutorial resources to secure a criminal conviction. The defense lawyer must be prepared to attempt to match resource with resource in defense of his client. Further, the lawyer representing a person accused of terrorism, like others accused of heinous crimes which stir public demands for punishment, must remain focused and stand fast to defend and protect this most vulnerable client if the rule of law and principles of fairness and justice are to survive.
In the recent case of United States v. Abdi, ___ F.3d ____, 2007 WL 2083729 (S.D.Ohio July 23, 2007) district court Judge Algenon L. Marbley addressed a number of pretrial motions filed by the defendant, Nuradin Abdi, and the Government, in a terrorism case. The nature and scope of these defense motions not only serve as a guide to defense attorneys in defending these kind of cases but also provide a glimpse at how the courts will address the motions.
Some factual background is in order. The defendant was charged in a four-count grand jury indictment on June 10, 2004 with the following violations:
• Defendant, from 1997 until November 2003, violated the provisions of 18 U.S.C. § 2339A and 18 U.S.C. § 371 by conspiring to provide material support to terrorists with the knowledge or intent that his support would be used to carry out a violation of 18 U.S.C. § 956, which prohibits a conspiracy to kill, kidnap, maim, and injury persons or property in a foreign.
• Defendant, from early 1998 until November 2003, conspired knowingly to provide material support to Al Qaeda, a designated Foreign Terrorist Organization (FTO), in violation of 18 U.S.C. § 2339B.
• Defendant on June 11, 1999, in violation of 18 U.S.C. § 546(a), knowingly possessed, obtained, and received a false Refugee Travel Document in that the Travel Document had been granted on the basis of a falsified asylum document.
• Defendant on March 25, 2000, in violation of 18 U.S.C. 546(a), knowingly used a false Refugee Travel Document.
The “overt act” necessary in furtherance of counts one and two was that the defendant applied for a travel document from the Immigration Naturalization Service (INS) and concealed his true destination of Ogaden, Ethiopia (where he received military-style training in preparation for a violent Jihad) by claiming he would be visiting Germany and Saudi Arabia.
Finally, the indictment charged that the defendant committed the offenses charged in counts three and four in order to facilitate an act of international terrorism.
The defendant’s motions to dismiss these criminal charges will be discussed individually for purposes of clarity.
1. MOTION TO DISMISS FOR PREJUDICIAL PRE-INDICTMENT
DELAY
The Government responded to defendant’s motion by saying it did not learn of defendant’s criminal activities, which began in 1997, until the spring of 2003 and, therefore, “could not possibly have charged Defendant with any offense prior to that day.” Id., WL at 2. The Government added that the period from the defendant’s arrest, November 28, 2003, until his June 10, 2004 indictment was not “for purposes of delay, but rather necessary for an adequate investigation.” Id.
While the statute of limitation is the primary concern associated with delayed prosecutions, “the Due Process Clause has a limited role in protecting against oppressive delay.” See, United States v. Lovasco, 431 U.S. 783, 789 (1977). See also: Abdi, WL at 2. A criminal defendant trying to secure due process relief must “prove that the government’s delay in bringing the indictment was a deliberate device to gain an advantage over [defendant] and that [the delay] caused him actual prejudice in presenting his defense.” See, United States v. Gouvea, 467 U.S. 180, 192 (1984); Abdi, supra, at WL 2.
Against this legal backdrop, the district court pointed to established precedent that a pre-indictment delay resulting from investigative efforts “does not deprive [a defendant] of due process, even if his defense may have been somewhat prejudiced by the lapse of time.” See, United States v. Rogers, 118 F.3d 466, 476 (6th Cir. 1987); Abdi, supra, at WL 2.
The Abdi court noted that the defendant had failed to demonstrate that the Government’s delay “was used as a deliberate device to gain an advantage, or that the delay caused substantial prejudice to Defendant’s case.” Id. The court stressed that the defendant’s delay complaints could be traced to the time between his alleged criminal activities and the time the Government became aware of them. Mere allegation of delay do not satisfy defendant’s burden of showing deliberate delay. See, United States v. Royals, 777 F.2d 1089 (5th Cir. 1985);
“A defendant cannot elude prosecution for years,” the Abdi court said, “and later use his own alleged successful evasive conduct to support a claim of pre-indictment delay.” Id.
2. SUBSTANTIVE MOTION TO DISMISS THE INDICTMENT FOR
INSUFFICIENCY
Count one of the indictment charged a conspiracy to provide material support to terrorists by specifically alleging:
• From in or about late 1997 to on or about November 27, 2003, the defendant, Nuradin M. Abdi, in the Southern District of Ohio and elsewhere, did knowingly and willfully combine, conspire, confederate, and agree with other persons, known and unknown to the Grand Jury, to violate Title 18, United States Code, Section 2339A.
• It was a part and object of the conspiracy that the defendant, Nuradin M. Abdi, and other persons known and unknown to the Grand Jury, would and did, within the United States, provide material support and resources and conceal and disguise the nature, location, source, and ownership of material support and resources, knowing and intending that they were to be used in preparation for, and in carrying out, a violation of Section 956 of Title 18, United States Code (conspiring to kill, kidnap, maim, and injure persons and to damage and destroy property in a foreign country), and in preparation for, and in carrying out, the concealment and an escape from the commission of such violation.
• [Over Act:] In furtherance of the conspiracy and to effect the illegal objects thereof, the following Overt Act, and others, was committed by the defendant:
On April 27, 1999, the defendant, Nuradin M. Abdi, applied to the Immigration and Naturalization Service (currently known as the Department of Homeland Security, Bureau of Immigration and Customs Enforcement) (“INS”) for a travel document, wherein he concealed his destination by representing that he intended to visit Germany and Saudi Arabia for the purpose of “Umrah (Holly [sic]-Mecca) and visit my relative,” when, as the defendant then well knew, he planned to travel to Ogaden, Ethiopia, for the purpose of obtaining military-style training in preparation for violent Jihad.
• All in violation of Title 18, United States Code, Sections 371 and 2339A.
The defendant argued that this count should be dismissed for the following reasons:
• It was insufficient to apprise him of the charges against him;
• The version of § 2339A under which he had been indicted had been invalidated; and
• The present version of 2339A remains unconstitutional as amended. Id., WL at 4.
A. Insufficiency
Federal Criminal Procedure Rule 7(c)(1) provides that: “The indictment or information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged … It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such a statement.”
This procedural rule finds its origin in the Fifth and Sixth Amendment. It satisfies the constitutional provisions if it: “(1) ‘contains the elements of the offense charged;’ (2) ‘fairly informs a defendant of the charge against which he must defend;’ and (3) ‘enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense’.” See, United States v. Titterington, 374 F.3d 453, 456 (6th Cir. 2004)[quoting Hamling v. United States, 418 U.S. 87, 117 (1974).
The defendant in Abdi alleged that count one against him was insufficient because:
• It failed to particularize the type of material support he allegedly provided and how such support was provided, disguised, or concealed;
• It failed to state who he and others had conspired to kill, maim, kidnap, damage or injure under 18 U.S.C. § 956;
• It omitted the facts of the conspiratorial agreements, including when said agreement was made, the object of the conspiracies, and any specific dates. Id., WL at 4
The Government responded by saying that met constitutional mustard because the indictment set out all the elements of the offense charged and tracked the statutory language of § 2339A. Id.
The court found the Government’s argument persuasive, citing the statute and the fact that the indictment did in fact track the language of the statute. Id. The court rejected the defendant’s argument, saying:
Defendant's argument that the Indictment does not allege conspiracy with adequate specificity is unpersuasive. It is well established that “the defendant does not ‘need’ detailed evidence about a conspiracy in order to prepare for trial properly,” nor do “[d]etails as to how and when a conspiracy was formed, or when each participant entered it, need [to] be revealed before trial.” United States v. Strawberry, 892 F.Supp. 519, 526 (S.D.N.Y.1995). Similarly, an allegation of conspiracy need not be dismissed for failing to identify specific co-conspirators. Rogers v. United States, 340 U.S. 367, 375 (1951) (“[A]t least two persons are required to constitute a conspiracy, but the identity of the other members of the conspiracy is not needed, inasmuch as one person can be convicted of conspiring with persons whose names are unknown.”); United States v. Rey, 923 F.2d 1217, 1222 (6th Cir.1991) (“[I]t is not essential that a conspirator know all other conspirators” because “[i]t is the grand jury's statement of the existence of the conspiracy agreement rather than the identity of those who agree which places the defendant on notice of the charge he must be prepared to meet.”) (internal quotation marks and citations omitted). Moreover, with regard to 18 U.S.C. § 956 (conspiring to kill, kidnap, maim, and injure persons and to damage and destroy property in a foreign country), the Indictment need not state who Defendant and others conspired to kill, kidnap, maim, or injure, or what property Defendant and others conspired to damage and destroy. See United States v. Sattar, 314 F.Supp.2d 279 (S.D.N.Y.2004) (“[T]he language of § 956(a) does not require that an indictment allege the identities of contemplated victims or the specific location outside of the United States where the contemplated killing, kidnapping, or maiming is to occur.”). Additionally, “[i]t is well settled that in an indictment for conspiring to commit an offense-in which the conspiracy is the gist of the crime-it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy....” United States v. Branan, 457 F.2d 1062, 1064 (6th Cir.1972).
Id., WL at 5.
B. Invalidation of 2339A
The defendant argued that the grand jury indicted him under a mistaken belief that his alleged conduct constituted a crime. He charged that the Government had secured the indictment on the premise that he lied on an immigration document for the purpose of visiting a Jihad training camp but failed to allege the following:
• That the training camp was under the control of or affiliated with any specific organization;
• That the defendant had a specific intent on where he might use the training; and
• That the defendant actually went to the training camp.
The defendant reasoned that, absent these facts, he could not be convicted of a crime. Id., WL at 5. The district court addressed this issue as follows:
In support of his arguments, Defendant relies upon a series of Ninth Circuit cases involving the Humanitarian Law Project, in which Defendant asserts that the court found § 2339A to be unconstitutionally vague. Defendant misinterprets the line of cases, however, and confuses §§ 2339A and 2339B, both of which Defendant is accused of violating.FN3 In the Humanitarian Law Project cases, plaintiffs-five organizations and two United States citizens seeking to provide support to the lawful, nonviolent activities of several groups designated as foreign terrorists organizations-feared that providing such support would expose them to criminal prosecution under § 2339B for proving material support and resources to foreign terrorist organization. The plaintiffs sought a preliminary injunction barring the enforcement of § 2339B against them, asserting that the terms “training” and “personnel” were impermissibly vague under the Fifth Amendment. The District Court agreed, Humanitarian Law Project v. Reno, 9 F.Supp.2d 1176 (C.D. Cal 1998) and the Ninth Circuit affirmed, Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir.2000) (“HLP I”). In response, the district court issued a permanent injunction, which the Ninth Circuit upheld. See Humanitarian Law Project v. United States Department of Justice, 352 F.3d 382 (9th Cir.2003) (“HLP II”), vacated after statutory amendment, 393 F .3d 902 (9th Cir.2004). In addition to upholding the district court's conclusion that “personnel” was impermissibly vague in 2339B, the Ninth Circuit's ruling in HLP II construed § 2339B to require that the donor of material support have knowledge that the recipient either had been designated as a foreign terrorist organization or engaged in terrorist activities (and not, merely, knowledge of providing material support). On December 17, 2004, as part of the Intelligence Reform and Terrorism Prevention Act of 2004, Pub.L. 108-458, codified at 18 U.S.C. § 2339B(h) (hereafter “IRTPA”), Congress amended the term “personnel” in the definition of material support, as applied to § 2339B only. 18 U.S.C. § 2339B(h). Id., at WL 6-7/
The defendant assumed that since § 2339A now restricts its prohibitions to employees or employee-like persons who serve the terrorist group and work at its command, his indictment should be dismissed because it was handed down at a time when the Government was under the “erroneous impression that merely visiting a training camp” violated § 2339A. His motion asserted that since the Government had not adequately charged him with providing “personnel” as required under the present version of the statute, or that he had maintained an “employee-like” relationship with any terrorist organization, or that the training camp that the Government said he planned to visit was affiliated with a terrorist organization, there was no basis for the indictment. Id., WL at 7
The district court, in a detailed analysis, listed the reasons why the defendant’s argument lacked merit:
First, the “personnel” amendment referred to in HLP I and II applies to § 2339B and not § 2339A. The plaintiffs in the HLP cases did not challenge § 2993A, but rather used that provision to distinguish 2339B. “While the statutory language of 2339A includes an explicit mens rea requirement to further illegal activities, such a requirement is notably missing from the statutory language of 2339B.” Humanitarian Law Project v. Gonzales, 380 F.Supp.2d 1134, 1146 (C.D.Cal.2005). Instead, § 2339B requires only that an individual knowingly provide material support or resources to an organization engaged in terrorist activities. The Court in HLP III noted that the legislative history indicates that Congress enacted § 2339B in order to close a loophole left by § 2339A. As § 2339A was limited to individuals (such as donors) who intended to further the commission of specific federal offenses, § 2339B encompassed donors who, though contributing to FTOs, acted without the intent to further federal crimes. Congress made a specific finding that “foreign organizations that engaged in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” 18 U.S.C. § 2339B advisory note.
As discussed further below in the analysis for Count Two, the 2004 amendment provides a mens rea requirement so that § 2339B covers only those who knowingly contribute to a FTO, knowing that such organization is in fact an FTO or an organization that engages or engaged in terrorist activities. The statute, however, still covers individuals such as donors who contribute to an organization knowing that it is an FTO even if they do not intend to further criminal conduct. In essence, Congress is restricting the ability of FTOs to raise funds needed for terrorist acts because providing support intended to aid an organization's peaceful activities frees up resources that can be used for terrorist acts. Under the amended “personnel” definition, however, individuals such as the plaintiffs in the HLP Cases can provide aid as long as they act independently of the FTO; criminal conduct is limited to those working under the “direction or control” of an FTO or actually managing or supervising an FTO operation. Again, this only addresses § 2339B as § 2339A already includes a mens rea requirement that the individual provide material support-such as personnel, not limited to the personnel as amended in 2339B- with the intent that the support be used to further the commission of federal crimes. Defendant's reliance on the HLP Cases is, therefore, wholly irrelevant and inappropriate with respect to § 2339A and Count One of the Indictment.
Second-and perhaps more importantly-Defendant, in several motions, confuses the criminal conduct alleged in Count One with the overt act provided in the indictment. Defendant states that the grand jury erroneously concluded that “merely visiting a training camp” could constitute a violation of 2339A. Defendant, however, is not charged with “merely visiting a training camp.” He is charged under § 2339A with conspiring to provide material support to terrorists knowing and intending that such support be used in violation of other federal crimes. The overt act alleged by the Government is Defendant's plan to attend a training camp, and his misrepresentation on an INS document in order to do so. The “material support” that Defendant allegedly conspired to provide to terrorists, may include himself (as personnel at a training camp) but it is not limited to such simply because the Government included that activity as a specific overt act.
Id., WL at 7-8.
C. Constitutionality of 2339A
The district court began its analysis of this portion of the defendant by pointing out that he had once again confused § 2339A and § 2339B. The defendant argued that § 2339A remained unconstitutionally vague despite its amendment of “personnel.” The court corrected the defendant, pointing out that “Section 2339A was not amended; the ‘personnel’ amendment only applies to the material support criminalized in § 2339B.” Id., WL at 8.
Additionally, defendant alleged that § 2339A had a “chilling effect on First Amendment freedoms” because it barred visits to lawful training camps. The district court did not spend much time on this issue, saying: “Again, Count One charges him with providing material support to terrorists, intending that such support be used to commit other federal crimes. Count One does not charge him with attending a training camp; it provides such action as an overt act taken in furtherance of the underlying conspiracy.” Id.
Much like he had with count one, defendant argued that count two, the conspiracy to provide material support to a designated Foreign Terrorist Organization, was also insufficient for the following reasons:
• It failed to adequately apprise him of the charges against him;
• The version of § 2339B under which he had been indicted has since been invalidated; and
• The present version of § 2339B remains unconstitutional as amended.
Id. WL at 9.
Count two of the indictment charges as follows:
• From in or about late 1997 or early 1998 to on or about November 27, 2003, the defendant, Nuradin M. Abdi, in the Southern District of Ohio and elsewhere, did knowingly combine, conspire, confederate, and agree with other persons, known and unknown to the Grand Jury, to violate Title 18, United States Code, Section 2339B.
• It was a part and an object of the conspiracy that the defendant, Nuradin M. Abdi, and other persons known and unknown to the Grand Jury, would and did, within the United States, knowingly provide material support and resources to a foreign terrorist organization, to wit, al Qaeda, which was designated by the Secretary of State as a foreign terrorist organization on October 8, 1999, pursuant to Section 219 of the Immigration and Nationality Act, and was redesignated as such on or about October 5, 2001, and October 2, 2003.
• [Over Act:] In furtherance of the conspiracy and to effect the illegal objects thereof, the following Overt Act, and others, was committed by the defendant:
• On April 27, 1999, the defendant, Nuradin M. Abdi, applied to INS for a travel document, wherein he concealed his destination by representing that he intended to visit Germany and Saudi Arabia for the purpose of “Umrah (Holly [sic]-Mecca) and visit my relative,” when, in fact, as the defendant then well knew, he planned to travel to Ogaden, Ethiopia, for the purpose of obtaining military-style training in preparation for violent Jihad. All in violation of Title 18, United States Code, Section 2339B. Id.
In addition, defendant argued that count two should be dismissed for failure to state an offense. Id.
A. Insufficiency
Defendant’s insufficiency argument with respect to count two was that the indictment failed to adequately allege mens rea; namely, that the defendant knew the material support he allegedly provided was for al Qaeda, a designated FTO. § 2339B at the time of defendant’s indictment read as follows: “[W]hoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall [be guilty of a crime].” The district court addressed this aspect of defendant’s argument by saying:
“Knowingly,” the key term in analyzing the level of mens rea in this statute, can be read in either of two ways: (1) as only modifying the verb “provides,” or (2) as modifying “provides” as well as the remaining elements in the statute. United States v. Marzook, 383 F.Supp.2d 1056, 1069 (N.D.Ill.2005). “ ‘Congress certainly intended by use of the word ‘knowingly’ to require some mental state with respect to some element of the crime,' but either interpretation would ‘accord with ordinary usage.’ “ Id. (quoting Liparota v. United States, 471 U.S. 419, 424-25 (1985)). Several interpretations arose in relevant case law due to the ambiguity in the statute. Id. (providing the various interpretations).
The first interpretation requires the Government to prove only that a defendant knowingly provided material support to an organization, regardless of whether a defendant knew the organization was a designated FTO or engaged in terrorism. Id. (concluding that such a reading, in effect, would create a strict liability crime because a defendant could be guilty for providing material support, such as a donation, that ended up in the hands of an FTO, even if by happenstance). The second interpretation requires the Government to prove both that Defendant knowingly provided material support, and that he knew that the organization was either a designated FTO or engaged in terrorism. Id. (adopting such interpretation); see also HLP II, 352 F .3d at 400 (“when Congress included the term “knowingly” in § 2339B, it meant that proof that a defendant knew of the organization's designation as a terrorist organization or proof that a defendant knew of the unlawful activities that caused it to be so designated was required to convict a defendant under the statute”), vacated on other grounds, 393 F.3d 902 (9th Cir.2004). The third interpretation requires the Government to prove that the defendant knowingly provided material support, knew the organization was either a designated FTO or engaged in terrorism, and specifically intended to further the organization's terrorist activities. See United States v. Al-Arian, 308 F.Supp.2d 1322, 1338-39 (holding that the government not only must prove that a donor knew the recipient was an FTO, but also that the donor specifically intended to further the terrorist activities of the organization); Marzook, 383 F.Supp.2d at 1070 (stating that such interpretation would allow a defendant to contribute material support with impunity to any number of organizations that engage in terrorist activity, so long as the defendant did not know that the Secretary of State had designated the recipient an FTO). Id., WL at 9.
Of the foregoing interpretations, the Abdi court agreed with the second interpretation as it was set forth in Marzook which requires the Government to prove that the defendant knowingly provided material support and knew that al Qaeda was either a designated FTO or was involved in terrorist activities. Id., at WL 10. The court said this was consistent with Congress’ December 17, 2004 pages of IRTPA in which Congress clarified § 2339B’s scienter requirement:
To violate [2339B], a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).
See, 18 U.S.C. § 2339B (2004); Abdi, supra, at WL 10.
The Abdi court concluded that, “under either the form or new version of the statute,” the prosecution had to not only prove that the defendant “knowingly” provided material support to al Qaeda but also that the defendant knew al Qaeda was either a designated FTO or engaged in terrorism or terrorist activities. Id. The court was not receptive to the defendant’s argument, noting that while Congress added the scienter requirement after the defendant had been indicted, this “definition largely tracked prior judicial decisions concerning the requirement, and was later included to eliminate the uncertainty created by the aberrant Al Arian decision. See Humanitarian Law Project v. Gonzales, 380 F.Supp.2d 1134, 1147 (C.D.Cal.2005) (viewing legislation as a rejection of the Al-Arian ruling); Linde, 384 F.Supp.2d at 587 (in adopting definition of ‘knowingly,’ ‘Congress appears to have expressed its disagreement with decisions relied upon by [defendant] ... e.g., U.S. v. Al-Arian ‘). Thus, this Court rejects Defendant's claim that Count Two is insufficient for not specifically charging that Defendant knew that the alleged support was provided to an FTO. The Court, however, provides this analysis-and the requirements for proof under 2339B-to assist the parties in trial preparation and to provide the parties an opportunity to draft appropriate jury instructions with regard to § 2339B.” Id.
B. Invalidation of § 2339B
The district court, as a preliminary matter, noted that this segment of defendant’s § 2339B argument parroted the argument he made against § 2339A. While the court noted that the defendant’s reliance on the Ninth Circuit’s HLP Cases was appropriate inasmuch as those cases addressed § 2339B, his argument still lacked merit. The court explained:
Defendant's arguments are premised on the assumption that the “material support” alleged by Count Two constitutes providing “personnel” (i.e., himself) as a potential jihadist combatant. As discussed above, the courts in the HLP cases held that, as applied to the plaintiffs in the civil law suit-who wished to advocate on behalf of certain FTOs-the term “personnel” was unconstitutionally vague because, without a more specific definition, such term could encompass the sort of advocacy that the plaintiffs wished to provide, thereby implicating First Amendment violations. The Government asserts that, in contrast to the HLP civil litigants, Defendant's conduct, set out sufficiently in the Indictment, lies well within the central meaning of the statute's prohibitions and does not involve mere advocacy association. The Government asserts that, as applied to offering oneself to serve as a combatant on behalf of persons bent upon committing acts of terrorism (18 U.S.C. § 2339A) or FTOs, such as al Qaeda (18 U.S.C. § 2339B), the phrase “providing ‘personnel’ “ has never been held to be unconstitutionally vague. Further, the Government contends that Defendant lacks standing to assert that, as to other hypothetical parties, the statute is unconstitutionally vague and threatens First Amendment rights. This Court finds the Government's argument, and the related controlling case law, persuasive. See, e.g., Village of Hofman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 495 (1982) (“[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others”); Parker v. Levy, 417 U.S. 733, 755-56 (1973) (a criminal defendant “who has fair notice from the language of [the statute] that the particular conduct is punishable [cannot] ... challenge the vagueness of [the statute] as [it] might be hypothetically applied to the conduct of others”); United States v. Marzook, 383 F.Supp.2d 1056, 1064 (N.D.Ill.2005) (“[i]f the actor is given sufficient notice that his conduct is within the proscription of the statute, his conviction is not vulnerable on vagueness grounds, even if, as applied to other conduct, the law would be unconstitutionally vague”); see also Ragen v. Time, Inc., 468 U.S. 641, 649-50 (1984) (rejecting vagueness challenge where statute clearly applied to plaintiff, despite statute's implication of First Amendment concerns); L. Tribe, American Constitutional Law 1036 (2d ed., 1988) (“[o]ne to whose conduct a statute clearly applies may not challenge it on the basis that it is ‘vague’ as applied to others”).
To satisfy due process, a criminal statute-such as the prohibition against providing “material support,” including “personnel,” to a FTO-must be sufficiently clear to give a person of “ordinary intelligence a reasonable opportunity to know what is prohibited.” Granyed v. City of Rockford, 408 U.S. 104, 108 (1972). To satisfy this requirement, the legislature need not define an offense with “mathematical certainty” ( Grayned, 408 U.S. at 110), but need only provide “relatively clear guidelines as to the prohibited conduct.” Posters N' Things, Ltd. v. United States, 511 U.S. 513, 525 (1994). Section 2339B, which prohibits individuals from providing material support to FTOs in the form of personnel, satisfies such standards insofar as it applies to combatants (or would-be combatants). Id., WL 10-11.
Based on this reasoning, the Abdi court concluded that the defendant’s “invalidation” argument with respect to § 2339B lacked merit.
C. Constitutionality of § 2339B as Amended
The amended version of § 2339B now reads:
Provision of Personnel. No person may be prosecuted under this section in connection with the term “personnel” unless that person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization's direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization. Individuals 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 and control.FN4 The Government argues that, although this amendment post-dated Defendant's indictment (and the conduct charged in Count Two), it ensures that no jury will convict him-as he maintains is yet possible-for merely expressive conduct in “the exercise of First Amendment freedoms.” This Court agrees. Because the amendment makes clear that prosecution is limited to those who “ ‘work under [a] terrorist organization's direction and control or to organize, manage, supervise, or otherwise direct the operation of that organization,’ “ there is no longer any likelihood that a person will be convicted for independently engaging in protected expression on behalf of an FTO, rather than for conduct while acting under its direction and control. See Humanitarian Law Project v. Gonzales, 380 F.Supp.2d 1134, 1152-53 (C.D.Cal.2005).
Id., WL at 12.
The Abdi court noted that the defendant was not charged with either engaging in Jihad or traveling to a training camp for that purpose but with conspiring to provide material support to a FTO. Id. The court put the issue to rest by holding that “allegations concerning his attempts to attend a jihadist training camp are not essential elements of Count Two but are merely alleged as overt acts in furtherance of the conspiracy.” Id.
Finally, with respect to defendant’s allegation that count two failed to state an offense, the defendant argued that al Qaeda became a FTO on October 8, 1999 pursuant to Section 219 of the Immigration and Nationality Act. The indictment charged that defendant’s “overt act” occurred on April 27, 1999. The defendant, therefore, reasoned that even if he had provided material support to al Qaeda on April 27, 1999, it would have been lawful to do so. The Government responded by informing the court that established precedent prohibited the court from reading an overt act requirement into a conspiracy statute. Id.
Referring to Supreme Court precedent, the Abdi court said there are two kinds of conspiracy statutes: “those that are modeled after 18 U.S.C. § 371, which requires an overt act, and those that are modeled after the common law of conspiracy, which does not require an overt act.” Id., WL at 13. See also: Whitfield v. United States, 543 U.S. 209 (2005).
18 U.S.C. § 371 reads as follows:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
The Supreme Court in Whitfield said that even where “Congress ha[s] omitted from the relevant provision any language expressly requiring an overt act, the Court [will] not read such a requirement into the statute.” Id., 433 at 213 [finding that 18 U.S.C. § 1567(h), which reads “[a]ny person who conspires to commit any offense defined in [§ 1956] or section 1957 shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy,” did not require an overt act simply because Congress had omitted any mention such].
The Abdi court applied this reasoning to § 2339B:
In drafting section § 2339B, Congress omitted any language requiring an overt act. The statute, at the time of the indictment, read: “[W]hoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall [be guilty of a crime].” 18 U.S.C. § 2339B. The statute's language does not reflect the words of 18 U.S.C. § 371; thus, the Court will not read an overt act requirement into the statute.FN5 Because § 2339B does not require an overt act, Count Two need not be dismissed because the alleged overt act occurred before the Secretary of States designated al Qaeda an FTO. Id., WL at 13.
With respect to counts three and four, defendant argued that the indictment was insufficient because it did not outline the components constituting “an act of international terrorism,” but rather merely alleged that defendant committed acts under § 1546 to “facilitate an act of international terrorism” without specifying the act, the intended consequence of the alleged act, or where the alleged act occurred. Id., at WL 14.
Counts three and four alleged violations of 18 U.S.C. § 1546(a), which prohibits, inter alia, the fraud or misuse of any immigration documents.
Count three specifically alleged:
• On or about June 11, 1999, in the Southern District of Ohio and elsewhere, the defendant, Nuradin M. Abdi, did knowingly possess, obtain, and receive a false Refugee Travel Document, a document required by INS and prescribed by statute or regulation for entry into the United States, knowing said Refugee Travel Document was falsely made, procured by means of false claims and statements, and otherwise unlawfully obtained, and that said Refugee Travel Document was obtained based on defendant's representations that he had been granted valid asylee status, when, in fact, as the defendant then well knew, his asylum application had been procured by means of false statements.
Court four specifically alleged:
• On or about March 25, 2000, in the Southern District of Ohio and elsewhere, the defendant, Nuradin M. Abdi, did knowingly use a false Refugee Travel Document, a document required by INS and prescribed by statute or regulation for entry into the United States, knowing said Refugee Travel Document was falsely made, procured by means of false claims and statements, and otherwise unlawfully obtained, in that said Refugee Travel Document was based on defendant's representations that he had been granted valid asylee status, when, in fact, as the defendant then well knew, his asylum application had been procured by means of false statements.
In addition, both counts alleged that defendant violated § 1546(a) in order “to facilitate an act of international terrorism,” in violation of 18 U.S.C. § 2331. A finding of guilt mandates a 25-year enhancement. Provided the offense was committed to facilitate an act of international terrorism as defined by 18 U.S.C. § 2331. See, 18 U.S.C. § 1546. Id.
§ 2331 defines an “act of international terrorism” as follows:
(1) the term “international terrorism” means activities that-
(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;
(B) appear to be intended-
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
(C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum;*15 18 U.S.C. § 2331(1)(A)-(C).
Led by these statutory guidelines, the Government responded to the defendant’s insufficiency motions relative to counts three and four by saying that because “international terrorism” is a term of art that is defined by statute, the indictment “need not parrot the component parts of the statutory definition.” Id.
The district court observed that, “stated differently, the word, in and of itself, is sufficient.” The court then explained why:
The Court finds that the Government need not allege the entire definition of “international terrorism” in the indictment. As explained by the Court in Kovach, 208 F.3d 1215, 1218-19 (10th Cir.2000), the various component parts of a statutory definition need not always be charged in the indictment. There, in an analogous situation, a defendant, charged with possessing counterfeit securities in violation of 18 U.S.C. § 513, challenged the indictment for its failure specifically to charge him with possessing securities that operated or affected interstate commerce, as required by § 513 (“[T]he statute contains a jurisdictional element which ensures, through a case-by-case inquiry that the crime in question involves ... interstate commerce”). The Court found that the word “organization,” which was contained in the indictment, sufficiently alleged the jurisdictional element because it was statutorily defined and was a term of art. Id., WL at 15.
The court concluded that the indictment did not charge the defendant “with a vague or undefined term. Rather, the words ‘international terrorism’ are defined by Section 2331 and can only be defined thereunder when alleged in an indictment …” Id.
While the Abdi court addressed a number of other motions filed by the defendant (and the Government), the issues raised by the defendant overlapped or restated arguments chronicled in his motions to dismiss. This article has not dealt with those motions, and the court’s reasons for denying them.
The purpose of this article is to inform defense attorneys, their support staff, and the general public that the level of pre-trial litigation in a terrorism case is quite intense.
Terrorism cases, like few others, can try the very soul of a lawyer, who will be stretched between loyalty towards one’s country and the passionate zeal to represent the client. Undoubtedly, such representation requires professional integrity, moral courage, and individual perseverance. This is especially true given the current political climate where the lawyer not only faces racial and cultural prejudices but also personal condemnation by those who would question his patriotism for defending the accused.
Attorneys defending terrorism suspects today face many of the same racial and cultural pressures faced by Harper Lee’s fictional attorney Atticus Finch in Maycomb County, Alabama in 1935 when he defended a “black” man named Thomas Robinson accused of raping a “white” woman[To Kill a Mockingbird]. Undoubtedly, such representation requires professional integrity, moral courage, and individual perseverance.
As Atticus would say, you can kill all the blue jays you want but it’s a “sin to kill a mockingbird.” It’s an even greater sin to say “no” to those cases that try the very soul of an attorney. The duty to defend is always paramount to the desire to turn and walk away.
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