Opinion
10 CR. 131 (PKC)
10-20-2011
UNITED STATES OF AMERICA, v. MOHAMED IBRAHIM AHMED, a/k/a "Talha," Defendant.
MEMORANDUM AND ORDER
Defendant Mohamed Ibrahim Ahmed is an Eritrean national and resident of Sweden who was detained by Nigerian authorities. An indictment was returned in this district and the defendant was thereafter brought to this district from Nigeria. The indictment charges Ahmed with conspiring to provide and providing material support to a foreign terrorist organization, Al Shabaab; it further charges Ahmed with conspiring to receive and receiving military-type training from Al Shabaab. The indictment does not allege that the defendant engaged or intended to engage in specific acts either within the United States or directed at its citizens or property here or in other countries. Ahmed now moves to dismiss the indictment asserting that there is no basis to exercise jurisdiction over him consistent with the Due Process Clause of the Fifth Amendment. He also moves to strike what he views as irrelevant and prejudicial surplusage from the indictment.
For reasons that will be explained, the motion to dismiss is denied. The motion to strike is denied without prejudice to renewal. DISCUSSION
A. Material Support.
Count One charges a conspiracy to provide material support to a foreign terrorist organization and Count Two charges the substantive crime of providing material support. By statute, "[w]hoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be [subject to punishment]." 18 U.S.C. § 2339B(a)(1). The statute contains an explicit knowledge requirement: "To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization..., that the organization has engaged or engages in terrorist activity . . . , or that the organization has engaged or engages in terrorism . . . ." Id. The indictment alleges that Al Shabaab has been designated as a terrorist organization under section 219 of the Immigration and Nationality Act, 8 USC § 1189. (Indictment ¶ 5.) It further alleges that Ahmed knew of the designation, knew that Al Shabaab had engaged and was engaging in terrorist activity, and that Al Shabaab had engaged and was engaging in terrorism as those terms are defined by section 2339(B). (Indictment ¶ 8.)
"Material support or resources" is defined as "any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials . . . ." 18 U.S.C. § 2339A(b)(1). The indictment alleges that Ahmed provided "currency" and "personnel" to Al Shabaab by, among other things, travelling to the vicinity of Kismayo and Barawa in Somalia for the purpose of receiving jihad training at Al Shabaab camps, giving approximately 3,000 Euros to Al Shabaab, purchasing an AK-47 rifle and two grenades and receiving instruction on bomb-making and bomb-denotation. (Indictment ¶ 9, 11.)
B. Receipt of Military-Type Training.
Count Three alleges a conspiracy to receive military-type training from a foreign terrorist organization and Count Four charges the substantive crime of the receipt of such training. The statute provides that "[w]hoever knowingly receives military-type training from or on behalf of any organization designated at the time of the training by the Secretary of State under section 219(a)(1) of the Immigration and Nationality Act as a foreign terrorist organization shall be [subject to punishment]." 18 U.S.C, § 2339D(a). The statute contains the same knowledge requirement as the material support statute. Id. The indictment cites the same acts that support the material support charges as support for the receipt of military training charges. (Indictment ¶ 15, 17)
C. Statutory Basis for Extraterritorial Jurisdiction.
The Second Circuit expounded on the principles that govern the extraterritorial application of a federal criminal statue in United States v. Yousef, 327 F.3d 56 (2d Cir. 2003). It suffices to note that a presumption against extraterritoriality may be overcome by the clear expression of the intent of lawmakers. Id. at 86. Both the material support and the military-type training statutes explicitly grant extraterritorial jurisdiction, as follows: extraterritorial jurisdiction may be exercised when the "offender is brought into . . . the United States . . . ." 18 U.S.C. §§ 2339B(d)(1)(C) & 2339D(b)(3). There is no dispute that the defendant was involuntarily brought into the United States after the offense conduct. Indeed, the indictment alleges that the defendant "will be first brought to and arrested" in this district. (Indictment ¶ 7, 11, 13, 17.) This alone is a sufficient statutory predicate for jurisdiction.
The defendant urges that the assertion of "brought into" jurisdiction in this case would violate the Due Process Clause of the Fifth Amendment because there is not otherwise a sufficient nexus with the United States. (Def's Mem. Supp. Motion to Dismiss 11-13.) In support he relies upon the Second Circuit's agreement with the formulation of the Ninth Circuit that "[i]n order to apply extraterritorially a federal criminal statute to a defendant consistently with due process, there must be a sufficient nexus between the defendant and the United States, so that such application would not be arbitrary or fundamentally unfair." United States v. Yousef, 327 F.3d at 111 (quoting United States v. Davis, 905 F.2d 245, 248 49 (9th Cir.1990)). Elsewhere in Yousef, the Court recognized that the nexus could be to the interests of the United States. Id. at 112 (offense conduct may not be "so unrelated to American interests as to render their prosecution in the United States arbitrary or fundamentally unfair").
For both the material support and military-type training offenses, the extrajurisdictional grant is set forth in the same statute that defines the elements of the offense. The elements of both statutes require that the organization have been designated by the Secretary of State as a "foreign terrorist organization." 18 U.S.C. §§ 2339B(a)(1) & (g)(6); 18 U.S.C. §§ 2339D(a) & (c)(4). One of the required elements for the designation by the Secretary of State is the finding that "the terrorist activity or terrorism of the organization threatens the security of United States nationals or the national security of the United States." 8 U.S.C. § 1189(a)(1)(C). Further, under the two statutes "the person must have knowledge that the organization is a designated terrorist organization . . . , that the organization has engaged or engages in terrorist activity . . . , or that the organization has engaged or engages in terrorism . . . ." 18 U.S.C. §§ 2339B(a)(1) & 2339D(a). Taken together, the designation and knowledge requirements ensure that there is a nexus to American interests so as to render the prosecution neither arbitrary nor fundamentally unfair.
The Second Circuit recently rejected the argument that it is fundamentally unfair to subject a person to prosecution in the United States where they did not have fair warning that they could be prosecuted in the United States. "Fair warning does not require that the defendants understand that they could be subject to criminal prosecution in the United States so long as they would reasonably understand that their conduct was criminal and would subject them to prosecution somewhere." United States v. al Kassar, 2011 WL 4375654, *5 (2d Cir. Sept. 21, 2011) (emphasis in original). The statute governing designation of foreign terrorist organizations requires that the organization engage in or have the capability and intent to engage in terrorist activity. 8 U.S.C. § 1189(a)(1)(b). Terrorist activity is defined to include activities such as hijacking, hostage taking, violent attack directed at foreign officials or American diplomats, assassination, use of any biological or chemical agent or nuclear weapon or explosive or firearm to endanger the safety of one or more persons or to damage property. 8 U.S.C. § 1182(a)(3)(B)(iii). These acts are "self-evidently criminal." United States v. al Kassar, 2011 WL 4375654 at *4. One who renders material support to or receives military-type training from an organization that he knows is a foreign terrorist organization ought to reasonably expect that he would be subject to prosecution in some jurisdiction. That is all al Kassar requires in this respect. Thus, the Due Process challenge fails.
Finally, the two statutes also confer jurisdiction where "the offense occurs in or affects interstate or foreign commerce . . . ." 18 U.S. C. §§ 2339B(d)(1)(E) & 2339D(b)(5). The indictment also alleges that the offenses occurred in and affected interstate and foreign commerce. (Indictment ¶¶ 7, 11, 13, 17.) The defendant asserts that the government will be unable to prove any impact on interstate commerce or foreign commerce. (Def's Mem. 8-11.) Specifically, he asserts that foreign commerce requires commerce between the United States and a foreign country and not between two or more foreign countries. (Def's Mem. 10); see United States v. Weingarten, 632 F.3d 60, 70-71 (2d Cir. 2011) (construing "travel[ ] in foreign commerce," as used in 18 U.S.C. § 2423(b)). First, the "brought into" provision provides a sufficient statutory basis for jurisdiction. Second, whether the government can adequately prove an effect on interstate and foreign commerce should not be resolved prior to trial as long as the indictment itself is sufficient on its face.
D. Surplusage in the Indictment.
Defendant moves under Fed. R. Crim. P. 7(d) to strike certain portions of the indictment as surplusage. For the material to be struck, it must be "not relevant to the crime charged and [be] inflammatory and prejudicial." United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir. 1990) (quoting United States v. Napolitano, 552 F.Supp. 465, 480 (S.D.N.Y. 1982)). Specifically, paragraphs 1 through 4 summarize the fifteen-year history of civil and sectarian violence in Somalia and describe the anti-American animus of Al Shabaab. It also contains vague statements of belief by unspecified persons of relationship between Al Shabaab and al-Qaeda; "[T]he [Islamic Courts Union] and Al Shabaab are believed to have provided protection and safe haven for al-Qaeda operatives wanted for the 1998 bombings of the United States embassies in Kenya and Tanzania and a 2002 hotel bombing in Kenya." (Indictment ¶ 1.) This Court will follow the practice adopted by others of awaiting the government's evidence before ruling on the motion. See Scarpa, 913 F.2d at 1012 (quoting the district court's reliance upon United States v. Castellano, 610 F.Supp. 1359, 1428-29 (S.D.N.Y. 1985) (Duffy, J.) and United States v. Persico, 621 F.Supp. 842, 861 (S.D.N.Y. 1985) (Keenan, J.)). The government will have some latitude at trial in demonstrating the nexus between defendant's conduct and American interests, as well as the background for the actions of others who are members of the charged conspiracies. See United States v. Bin Laden, 91 F.Supp.2d 600 (S.D.N.Y. 2000). The Court can better decide the issue in the context of trial. Indeed, the issue has been avoided in at least one case by a stipulation between the parties. See, e.g., United States v. Yousef, 2011 WL 2899244 (S.D.N.Y. June 30, 2011) (Keenan, J.). In all events, the jury will not receive a copy of the indictment until it enters the deliberation phase.
CONCLUSION
The motion to dismiss is DENIED, The motion to strike surplusage is DENIED WITHOUT PREJUDICE.
SO ORDERED.
/s/_________
P. Kevin Castel
United States District Judge Dated: New York, New York
October 20, 2011