Opinion
Case No. 8:03-cr-77-T-30TBM.
April 8, 2005
ORDER
THIS CAUSE comes before the Court without oral argument upon Defendant Al-Arian's Motion to Suppress (Dkt. #784), the Government's response thereto (Dkt. # 841), and Defendant Al-Arian's reply to the Government's response (Dkt. #861). For the reasons stated herein, this Court finds that Defendant Al-Arian's Motion should be DENIED.
Defendant Al-Arian ("Defendant") asserts multiple grounds for suppressing evidence seized during the execution of three search warrants issued in November 1995 (the "November 1995 warrants"), one search warrant issued in December 1995 (the "December 1995 warrant"), and one search warrant issued in February 2003 (the "February 2003 warrant). The combination of legal challenges Defendant makes to each of these warrants is not identical, but many of his challenges are directed to more than one search warrant. Before addressing the merits of each of these arguments, a description of all five search warrants is necessary.
The Government argued in its response that Defendant does not have standing to challenge the lawfulness of evidence seized pursuant to these warrants at certain of the targeted locations. This Court did not address the issue of Defendant's standing in light of its ruling on the merits of Defendant's Motion.
I. Description of Search Warrants A. November 1995 warrants
The November 1995 warrants authorized a search of Defendant's personal residence located in Temple Terrace, Florida, his office at the University of South Florida ("USF"), and the office suites of the World and Islam Studies Enterprise ("WISE"). The affidavit for the warrant was completed by a Special Agent of the Immigration and Naturalization Service ("INS"), who at the time had served as a Special Agent for the INS for over 17 years. The Special Agent was investigating Defendant's violation of U.S. immigration and other associated laws. These laws included 18 U.S.C. § 1001 (false statements in a matter before the U.S. Government), 18 U.S.C. § 1015 (false statements in a matter relating to naturalization), 18 U.S.C. § 1425 (unlawful procurement of naturalization), 18 U.S.C. § 1546 (false statements on documents required by immigration laws or regulations), and 8 U.S.C. § 1327 (assisting an inadmissible alien obtain entry into the United States).The Special Agent's affidavit stated that he had learned from news accounts that Defendant was affiliated with the Islamic Concern Project ("ICP") and WISE, and was using these organizations to support terrorist groups operating in the Middle East. The articles prompted the Special Agent to obtain Defendant's application for naturalization, INS Form N-400 dated December 30, 1993, to determine whether either of these organizations were listed in the appropriate section of the form. The Special Agent learned from his investigation that Defendant did not identify either of these two organizations in his naturalization application, despite having listed several other organizations in the appropriate section.
The Special Agent explained that he proceeded to obtain the organizational records of ICP and WISE filed with the Florida Department of State. The Special Agent's review of these organizational records revealed that Defendant was not only a member of ICP and WISE, he was the founding officer of both organizations. This review also showed that ICP and WISE had been in existence since October 1988, and February 1991, respectively. The Special Agent explained that after reviewing these documents, he submitted them along with Defendant's naturalization application to the INS forensic document laboratory in Virginia for a signature comparison examination. The INS Lab confirmed that the signatures on these documents were made by the same person.
Based on this information, the Special Agent concluded that Defendant had violated 18 U.S.C. §§ 1001, 1015, and 1425 for failing to identify ICP and WISE on his naturalization application. The Special Agent also believed, however, that Defendant had violated other U.S. immigration laws by using the ICP and WISE to support terrorist groups operating in the Middle East. This support included assisting certain inadmissible members of the PIJ to gain entrance into the United States. To substantiate these charges, the Special Agent provided additional details in the affidavit.
The Special Agent began by describing newspaper articles published in October-November 1995, which reported on the assassination of the former leader of the Palestinian Islamic Jihad ("PIJ"). According to the Special Agent, these articles reported that Ramadan Abdullah Shallah ("Shallah") had become the PIJ's new leader. The articles also reported that Shallah was a former colleague of Defendant and former professor at USF. The Special Agent noted that these newspaper articles also contained a picture of Shallah attending the funeral of the slain leader of the PIJ. He also explained that the FBI verified with officials at USF, including its president, that the individual pictured in the newspaper was the same Shallah who had been employed at the university.
The Special Agent appears to have used the name "Islamic Jihad" interchangeably with the "Palestinian Islamic Jihad" and the "Palestinian Islamic Jihad-Shiqaqi Faction." This organization was identified in the affidavit as a terrorist organization, and this characterization was based on, inter alia, Executive Order 12947 signed by the President of the United States on January 23, 1995, and discussions the Special Agent had with "terrorist organization experts" who characterized the PIJ as a Palestinian Islamic militant organization engaged in terrorist activities.
Next, the Special Agent proceeded to outline evidence he gathered connecting Defendant and WISE to Shallah. The Special Agent explained that after reading these articles, he conducted a subsequent investigation of INS records. This investigation led to two INS entries for Shallah entered in 1993 and 1994 which identified Shallah as a temporary specialized worker based at the address of WISE. The Special Agent's investigation also revealed three visa petitions submitted on behalf of Shallah by Defendant. Defendant identified himself as "Chairman of the Board" in two of these forms filed in September 1993 and May 1994, and he indicated that Shallah would be working for WISE as a "research associate." After describing these INS records, the Special Agent noted that an FBI cooperating witness who had "provided reliable and credible information in the past to law enforcement" stated that he had attended Islamic conferences "over the past several years" where Defendant and Shallah lobbied for the support of Islamic militant movements and admitted that the purpose of the ICP and WISE was to provide support for Palestinian political causes.
After outlining this evidence, the Special Agent discussed information he had learned connecting Defendant and WISE to another alleged PIJ member, Basheer Nafi ("Nafi"). The Special Agent explained that his search of INS records revealed that Defendant had filed two "H-1" visa petitions on behalf of Nafi on September 13, 1992, and August 25, 1995. He also noted that Defendant was identified in these petitions as the chairman of WISE, and Nafi was stated to be the "director of research" for the organization. The Special Agent explained that other entries for Nafi in INS records listed Defendant's residence, and the registered address of the ICP, as Nafi's destination.
To establish Nafi's association with the PIJ, the Special Agent noted that Nafi was identified in a Jordanian newspaper article published on November 6, 1995, as a leading PIJ member. He explained that this information, according to the article, was based on an interview with a PIJ "official." The Special Agent also referred to a report from a "reliable" cooperating witness of the FBI who had "extensive knowledge" of both Nafi and the PIJ to corroborate the article's information regarding Nafi's affiliation with the PIJ.
After describing this evidence connecting Defendant to Shallah and Nafi, the Special Agent referenced telephone records of the Defendant as additional evidence of his alleged criminal activities. The Special Agent explained that he was informed by the FBI that "numerous" phone calls "within the past five years" were made from Defendant's home to two of the suspects in the World Trade Center bombing investigation. The Special Agent also explained that "many" phone calls were made from Defendant's residence to the Sudanese Embassy and the Iranian Interest Section, two countries that had been officially designated as terrorist sponsoring states by the U.S. State Department.
Next, the Special Agent discussed conversations he had with "terrorist organization experts" working for various federal law enforcement agencies, including the FBI and the State Department Diplomatic Security Service. The Special Agent explained that these experts advised him that the PIJ used "front organizations" for fund-raising activities and for assisting their operatives to obtain entry into the United States. Based on all of this information, the Special Agent concluded that Defendant had violated 8 U.S.C. § 1327, 18 U.S.C. §§ 1015, 1425, and 1546 by using ICP and WISE to further the operations of the PIJ and to assist Shallah and Nafi to gain entry into the United States.
The magistrate judge issued the November 1995 warrants on November 17, 1995, after he determined that this information provided probable cause to search Defendant's home, his office at USF, and the WISE office suites for evidence establishing criminal violations of the statutes specified in the affidavits. These search warrants authorized the executing officers to search for and seize twenty-one categories of items, including organizational documents of ICP and WISE; miscellaneous financial documents and records related to ICP, WISE, Defendant, Shallah, and Nafi; and information stored on computers related to these organizations and persons. The officers timely executed the warrants three days after they were issued.
For a list of categories listed in the November 1995 warrants, see "Attachment B" at the end of this Order.
B. December 1995 Warrant
The second search in 1995 was conducted at the Peoples Storage rental facility. The affidavit for the warrant was filed by a special agent of the FBI (the "FBI agent") who had worked for the agency for 30 years. It was submitted after the agents who executed the initial 1995 search warrant at WISE discovered a cancelled check written to Peoples Storage for the rental fee of one of its storage units. The check was dated May 1, 1995, signed by an officer of WISE, and written on the account of ICP.
In the affidavit, after describing the discovery of this check, the FBI agent explained the follow-up investigation that ensued. He stated that the general manager of Peoples Storage informed him that Defendant began renting the storage space in June 1993, and that the next monthly payment would be due on December 30, 1995. The FBI agent also stated that the general manager told him that the Peoples Storage records indicated entry into the storage space was made on November 12 and on November 24.
In addition to this information, the FBI agent incorporated by reference and attached to his affidavit the affidavit and warrant for the November 1995 warrants. The FBI agent also stated that a letter written by Defendant was found at Defendant's residence during the execution of the November 1995 warrants and this letter solicited funds for the "Islamic movement in Palestine" and appealed for support of the "Jihad." In conclusion, the FBI agent explained that his training and experience with the FBI have demonstrated that persons involved in criminal matters store records at such facilities because they are locked, secure, and offer a "degree of privacy not afforded by [a] home or office."
The FBI agent identified the same crimes under investigation in his affidavit for the December 1995 warrant as the Special Agent had listed in the affidavits for the November 1995 warrants. In addition, the FBI agent listed the crimes of "mail fraud" under 18 U.S.C. § 1341, and "false information in registering and voting" under 42 U.S.C. § 1973. The addition of these two crimes has no bearing on any of the legal issues addressed herein.
The agent also mentioned that records of the Supervisor of Elections of Hillsborough County, Tampa, Florida, demonstrated that Defendant and his wife falsely swore under oath that they were American citizens and that this enabled them to obtain "fraudulent voter registration cards." This information appears to have formed the basis for the FBI agent's addition of the "false information in voting" count in the affidavit.
As with the November 1995 warrants, the magistrate judge issued the December 1995 warrant after determining that the affidavit provided probable cause to search the rental unit at the Peoples Storage facility. The search warrant authorized a search and seizure of documents falling within eight (8) categories of items legally indistinguishable from similar categories listed in the November 1995 warrants. The officers conducted the search of the Peoples Storage unit the same day the warrant was issued.
These eight (8) categories can be found in "Attachment A" at the end of this Order.
C. February 2003 Warrant
By the time the February 2003 affidavit was submitted to the magistrate judge, the federal grand jury had returned a Bill of Indictment against Defendant and others charging them with multiple criminal acts arising out of their alleged support to the PIJ and Hamas. Having determined that probable cause was established, the magistrate judge issued a warrant setting forth thirteen (13) categories of items that could be searched for and seized. These categories included items reflecting "indicia of membership in or any association with" the PIJ, Hamas, WISE, ICP, or the Islamic Academy of Florida ("IAF"); documents displaying the names of these groups/organizations; records reflecting contact information for "co-conspirators," members and individuals associated with these groups or organizations; pictures or other recordings of these co-conspirators, members, and associated individuals; items evidencing the concealment of assets and/or expenditures of money; U.S. and foreign currency; travel records; travel documents such as passports or visas; and information from any of these categories stored in computers or computer related equipment.
These crimes extended beyond the immigration law violations under investigation in 1995. As described in the February 2003 affidavit, the Indictment charged Defendant and seven others with multiple crimes. These charges are identified in "Attachment #3" at the end of this Order.
Defendant has not challenged the magistrate judge's finding that probable cause justified the issuance of the February 2003 warrant. This Court, therefore, has not outlined the information included in the related affidavit.
The February 2003 warrant authorized a search of the apartment where Defendant was living at the time. It also permitted a search of the administrative offices of IAF, a religious educational institution Defendant founded and where Defendant worked and acted as "advisor." The officers executed the search warrant the day after it was issued. The search warrant authorized the officers to conduct their search at 5903 130th Avenue because this address marked the purported location of Defendant's office. During the execution of the warrant, however, the executing officers learned that Defendant's office was actually located at 5901 130th Avenue. After being informed by the principal of IAF of the precise location of Defendant's office at the 5901 address, the officers had the principal execute an FBI "Consent to Search Form" and escort them to the offices for the ensuing search
II. Legal Challenges to the Warrants
Defendant argues that all five search warrants violated the Fourth Amendment's prohibition against unreasonable searches and seizures and warrants lacking in probable cause. He contends that the November 1995 warrants were not based on probable cause, the affidavits in support of the warrants failed to establish the requisite nexus between the criminal activity under investigation and the targeted locations, and the scope and execution of the warrants were overly broad. Defendant challenges the December 1995 warrant on these same grounds, except he omits the claim that the execution of the warrant was overbroad. With respect to the February 2003 warrant, Defendant contends that the scope and execution of the warrant were overbroad, and the warrant was based on an affidavit that contained material misrepresentations and omissions.
The Fourth Amendment to the United States Constitution provides, in pertinent part, that "[t]he right of the people to be secure . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. IV Amend.
Before addressing the legal merits of Defendant's arguments, two preliminary matters raised in the parties' briefs must be addressed. Defendant included in his Motion an objection to procedures used beginning in December 2003 to reconstruct this Court's case files relating to the November 1995 warrants and the December 1995 warrant. According to a letter from the Clerk of the Court dated June 18, 2002, these case files were inadvertently destroyed due to a misinterpretation of the Guide to Judiciary Policies and Procedures by clerks in the Tampa division.
This destruction occurred nearly two years after the case files were ordered unsealed and at a time when the Court was relocating to its new courthouse. The case files were reconstructed after requests were made by the magistrate judge to counsel for the Government and Defendant for copies of all documents in their possession relating to these files that were not otherwise privileged or confidential. Sworn affidavits were completed and filed by the Special Agent and the FBI Agent attesting to the accuracy of the photocopied affidavits, warrants, and search returns that were submitted to the Court.
By order dated April 17, 1996, the contents of the case files were unsealed by the magistrate judge. The documents were shredded by the Clerks' office beginning in March 1998.
Defendant is no longer represented by the same counsel to whom these requests were made.
Counsel for Defendant initially balked at the magistrate judge's request, but was later ordered to turn over copies of the documents in his possession after a hearing was held at counsel's request. A request was also made to counsel for the Tampa Tribune, which was thought to have received copies of relevant documents after it filed an intervention action seeking public access to the search warrant case files.
Defendant now claims that the process used by the magistrate judge to reconstruct the search warrant case files violated his Fifth Amendment right to due process and his Sixth Amendment right to assistance of counsel. Defendant believes that the Special Agent and the FBI Agent who provided sworn affidavits attesting to the accuracy of the reconstructed files should have been subject to examination either by a "special master" or by counsel for Defendant.
These objections to the reconstruction process are meritless. Defendant has not identified a single inaccuracy in the reconstructed case files, and his assertion that "the method employed by the Court is not conducive to an accurate reconstruction of the destroyed documents," without more, falls well short of demonstrating prejudice. Defendant's Fifth and Sixth Amendment challenges to the 1995 search warrants, therefore, are denied.
The second preliminary matter relates to the 2003 consent search of the IAF offices. As explained above, the officers executing the February 2003 warrant searched Defendant's office at IAF after they received permission from the principal of the school. Defendant contends that the Government has not proven that the warrantless search and seizure conducted at this location was legal and that this Court must hold an evidentiary hearing to determine whether the principal's consent was valid.
Along with its response to Defendant's Motion, the Government attached the FBI "Consent to Search Form" that was completed by the principal of IAF before the search was conducted. The form specifically states that the IAF principal was advised of his "right to refuse consent" and "voluntarily" gave the officers permission to search the facilities. The Government also attached a memorandum prepared by an FBI agent which purported to outline the circumstances surrounding the consent. The memorandum noted that the principal re-signed the consent form forty-five (45) minutes after he signed it the first time.
"The government bears the burden of proving both the existence of consent and that the consent was not a function of acquiescence to a claim of lawful authority but rather was given freely and voluntarily." United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989). The consent form and the memorandum attached to the Government's response satisfies this burden. These documents demonstrate that the IAF principal was aware of his right to refuse to consent to the search, he was not in custody before he signed the form, and he was not subject to any other coercive police procedures that might cast doubt on the statements in the consent form. See Blake, 888 F.2d at 798 (identifying awareness of the right to refuse, custodial status, and the presence of coercive police procedures as relevant factors to consider when assessing whether a person's consent is voluntary).
Defendant has not responded with any specific allegations to rebut the statements in the consent form or the description surrounding the consent in the memorandum. Accordingly, an evidentiary hearing on this matter is unnecessary for the warrantless search of the IAF offices appears to have been conducted with the IAF principal's consent. See United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir. 1985) (upholding the trial court's refusal to hold an evidentiary hearing on defendants' motion to suppress because the motion did not "allege facts which, if proven, would provide a basis for relief").
A. Probable Cause
Defendant has argued that the affidavits in support of the November 1995 warrants failed to establish probable cause. All of Defendant's probable cause challenges to the affidavit are pertinent to the Special Agent's claims that Defendant provided support to the PIJ by using ICP and WISE as "front organizations" and by helping Nafi and Shallah gain entry into the United States. Defendant's attention to these allegations in the affidavit is not surprising considering the criminal charges currently pending against him. At the time the affidavit was completed, however, the investigation was not directed solely to uncovering evidence of Defendant's assistance to the PIJ. The Special Agent was also investigating the false statements Defendant appeared to have made on his naturalization application.
Defendant has also argued that the December 1995 warrant was not supported by probable cause. As noted in the description of the December 1995 warrant in Section I, the affidavits and search warrants for the November 1995 warrants were incorporated into and attached to the affidavit in support of the December 1995 warrant. Thus, a finding that the November 1995 warrants were issued upon probable cause will foreclose Defendant's probable cause argument with respect to the December 1995 warrant. See e.g., United States v. Cook, 348 F.Supp.2d 22, 26-27 (S.D.N.Y. 2004) (upholding the probable cause basis for one warrant where it incorporated by reference and attached an earlier warrant that had established probable cause).
Undoubtedly, Defendant's use of WISE and ICP to support the PIJ was relevant to the alleged violation of immigration laws because many of these laws authorized enhanced penalties when false statements were made to further terrorist activities. See e.g., 18 U.S.C. § 1546(a) (authorizing imprisonment of "not more than 25 years" if the offense "was committed to facilitate an act of international terrorism"). But probable cause that Defendant violated U.S. immigration laws could have been established regardless of the sufficiency of the allegations related to Defendant's support for the PIJ. The allegations related to Defendant's support of the PIJ, however, are important to the issue of the scope of the search warrant.
The standard for determining whether a search warrant application is supported by probable cause is well established. The magistrate judge is "simply to make a practical, common-sense decision whether given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). Reviewing courts accord "great deference" to the findings of the magistrate judge, and are to uphold the probable cause determination "so long as the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing." Gates, 462 U.S. at 236 (internal citations and quotations omitted).
The facts and circumstances set forth in the affidavit clearly established probable cause that Defendant had violated immigration laws 18 U.S.C. §§ 1001, 1015, and 1425 by making a false statement on his naturalization application. As noted in section I above, these provisions make unlawful the submission of a naturalization application to the INS that contains false information. The affidavits outlined the Special Agent's investigation and stated that Defendant had omitted the ICP and WISE from his naturalization application, ICP and WISE had been incorporated prior to the date Defendant submitted his naturalization application, and Defendant was the founding officer of both organizations.
The date ICP and WISE were incorporated was relevant because Part 9 of the naturalization application requires the applicant to list his "present and past membership" in every organization in which he has been a member.
Additionally, the Special Agent noted in the affidavit that as recently as three months before and five months after Defendant signed and dated his naturalization application, Defendant submitted visa petitions on behalf of Shallah where he identified himself as "Chairman of the board" of WISE. Finally, the Special Agent described the two visa petitions filed by Defendant on behalf of Nafi around a year before and a year after Defendant submitted his naturalization application. All of this information obtained by the agent through his own investigative efforts clearly provided the magistrate judge with a substantial basis for determining that there was a "fair probability" Defendant had violated 18 U.S.C. §§ 1001, 1015, and 1425.
Having upheld this probable cause determination, each of the categories of items listed in the November 1995 warrants pertaining to Defendant's association with ICP and WISE could be appropriately searched for and seized. The practical effect of this finding is unclear because the discovery index which identifies all items seized pursuant to the November 1995 warrants is not part of the record.
Because the magistrate also found that the affidavit established probable cause that Defendant used ICP and WISE to support the PIJ and to assist its agents in gaining entry into the United States in violation of 8 U.S.C. § 1327 and 18 U.S.C. § 1546, this Court turns to the numerous probable cause challenges asserted by Defendant.
Defendant's argument that no probable cause existed in the November 1995 search warrants is primarily based on four alleged flaws in the Special Agents' affidavit. First, Defendant contends that the Special Agent failed to provide information in the affidavit that would allow the magistrate judge to determine the accuracy and reliability of the various news accounts mentioned therein. These news accounts related to the Defendant's use of ICP and WISE to provide support to the PIJ, Shallah's attendance at the funeral of the former leader of the PIJ, Shallah's ascension to the leadership position of the PIJ, and Nafi's association with the PIJ. Defendant contends that the affidavit failed to "state where these articles were published . . . who the author or authors of these articles were, [or] give any basis to suggest that the articles were based on reliable sources/or that anything in the articles can be relied upon as being true."
Second, Defendant objects to the Special Agent's failure to provide information which would allow the magistrate judge to determine the reliability of the various cooperating witnesses. Statements attributed to the cooperating witnesses included the report that Nafi was a significant leading member of the PIJ, and the report of Defendant and Shallah's remarks at the Islamic conferences made by the FBI's cooperating witness. Third, Defendant challenged the affidavit's failure to specify a date when certain acts identified therein occurred. Defendant contends that dates should have been provided for the telephone calls made from Defendant's home to the World Trade Center bombing suspects, the Sudanese embassy and the Iranian Interest Section, and for the statements of Defendant and Shallah at the Islamic conferences.
Defendant also challenges the probative value of this information based on the Special Agent's failure to explain who made these phone calls, what was discussed, and exactly how the two bombing suspects were associated with the perpetrators of the attack. Defendant points out that these individuals were not convicted or even alleged to have been involved in the bombing after the investigation was completed.
Finally, Defendant argues that the Special Agent failed to substantiate the claims related to his expertise and the expertise of other federal law enforcement personnel referred to in the affidavit. Defendant contends that the magistrate judge was not provided an explanation of how such expertise was obtained, and was not given the names of the other persons whose expertise was credited in the application. Among the items in the affidavits related to the expertise of the Special Agent and others were the conclusions that Shallah and Nafi must have been members of the PIJ for a considerable period of time due to their respective leadership positions, and that the PIJ maintains front organizations in the United States to raise funds and to procure entry of their members into the country.
Defendant's objections to the probative value of each item of information contained in the affidavit possess a certain degree of merit. Undoubtedly, the inclusion of more specific details of the news accounts, the cooperating witnesses, the phone calls from Defendant's residence, the dates and locations of the Islamic conferences, and the expertise of the sources of information referred to therein would have buttressed the Special Agent's allegations of criminal activity. Whether a search warrant application establishes probable cause of unlawful activity, however, is not determined by the relative value of each individual piece of information and the affiant's ability to maximize this value. See Gates, 462 U.S. at 232 (probable cause does not require that "each factual allegation which the affiant puts forth . . . be independently documented, or that each and every fact which contributed to his conclusions be spelled out in the complaint") ( internal quotations and citations omitted). Instead, probable cause is determined by considering the combined value of all of the information provided to the magistrate. See Gates, 462 U.S. at 230-231 (probable cause is to be ascertained using a "totality-of-the-circumstances approach").
This principle was clarified by the Supreme Court in Gates, when it held that the veracity, reliability, and basis of knowledge of a source are not prerequisites to a finding of probable cause. These items are "simply . . . closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is probable cause to believe that contraband or evidence is located in a particular place." Id. at 230 (internal quotations omitted).
Applying the totality-of-the-circumstances test to the November 1995 search warrants, this Court determines that the affidavit also provided the magistrate judge with a substantial basis to conclude that it was probable Defendant used ICP and WISE to support the PIJ and Defendant unlawfully assisted its members to gain entry into the country. These allegations were supported by consistent and corroborating facts from multiple sources. First, the Special Agent took note of Defendant's omission of WISE and ICP from his naturalization application. The magistrate could have considered this omission suspicious since, according to the organizations' documents filed with the Florida Department of State, Defendant was not merely a member, but the founding officer of both organizations. This omission would have been judged by the magistrate in light of the visa petitions Defendant filed on behalf of Nafi and Shallah, filed in close proximity to the filing of the naturalization application, in which Defendant identified himself in these petitions as the chairman of WISE.
The agent followed up this evidence with the May, 1995 newspaper articles that identified Defendant as the founder of WISE and ICP and that stated these organizations were used to provide support to the PIJ. Although the author or origin of these newspaper articles was not identified, the Florida Department of State records and the visa petitions Defendant filed on behalf of Shallah and Nafi corroborated the articles' information relating to Defendant's association with WISE and ICP. This corroboration of innocent details in the articles gave the articles' information about Defendant's illicit use of WISE and ICP a certain reliability. See id. at 244 (explaining that "because an informant is right about some things, he is more probably right about other facts") ( internal citations and quotations omitted).
More important, the articles' report that Defendant was using WISE and ICP to support the PIJ was corroborated in the affidavit by several other independent and mutually reinforcing sources of information. These other sources of information included the FBI's "cooperating witness" who stated that he heard Defendant espouse support for Islamic militant groups and admit that ICP and WISE were being used to provide support for Palestinian political causes during several Islamic conferences over the years. Other independent and corroborating sources of information included the INS records that established Shallah and Nafi's association with Defendant, WISE and ICP, and the separate sources who reported that Shallah and Nafi were leading members of the PIJ.
As explained in Section I, Shallah was reported to be the new leader of the Palestinian Islamic Jihad by newspaper articles published in October 1995. Besides simply stating that Shallah was the new leader of the Palestinian Islamic Jihad, these articles included a picture of Shallah attending the funeral of the terrorist group's slain leader. Shallah, who Defendant identified as a WISE "research associate" on the visa petition, was also reported to be espousing support for Islamic militant movements along with Defendant at the Islamic conferences. Nafi was reported to be a leading member of the Islamic Jihad by two independent sources: the Al Urdun newspaper article dated November 6, 1995, and another reliable FBI cooperating witness who was identified as being familiar with Nafi and the PIJ.
Supplementing all of these independent sources of information were the Special Agent's reported discussions with the terrorist organization experts from other federal law enforcement agencies. These individuals advised the Special Agent that Islamic militant groups used front organizations to raise funds and procure entry of their operatives into the United States. The combined value of all of these consistent and mutually reinforcing sources of information provided the magistrate with a substantial basis for concluding that it was probable Defendant used WISE and ICP to further the activities of the PIJ and that Shallah and Nafi were members of this terrorist organization. Accordingly, all of the magistrate judge's probable cause determinations are sustainable.
Having concluded that the November 1995 warrants were issued upon a finding of probable cause, Defendant's argument that the December 1995 was not based on probable cause is denied. As noted in footnote 13 supra, the December 1995 warrant incorporated by reference and attached the November 1995 warrants and supporting affidavits. Moreover, the affidavit to the December 1995 warrant also referenced the letter seized at Defendant's residence in which Defendant solicited funds for the "Jihad."
B. Nexus
Defendant contends that the affidavits in support of the November 1995 warrants and the December 1995 warrant failed to establish the requisite nexus between his alleged criminal activity and his home, his USF office, the office suites at WISE, and the Peoples Storage facility. A "warrant affidavit must show that there is a fair probability that contraband or evidence of a crime will be found at the particular place to be searched."United States v. Jiminez, 224 F.3d 1243, 1247 (11th Cir. 2000). In this case, the Special Agent established the requisite nexus to search all four locations listed in the 1995 search warrants.To support the search of Defendant's residence, the Special Agent described the articles of incorporation for ICP that were completed by Defendant and on file with the Florida Department of State. These records listed Defendant's residence as the organization's mailing address. The Special Agent also directly connected Defendant's residence to the purported unlawful activity by referencing Nafi's April 1994 application for a temporary visa, wherein Nafi listed Defendant's residence as his destination. Having established Defendant's role as the founding officer and chairman of both WISE and ICP, and Defendant's active participation in the operations of these two organizations, the Special Agent relied on over seventeen years of experience with the INS to conclude that records of these two organizations would be found at Defendant's residence. These documentary links between the organizations and Defendant's residence and the well reasoned conclusions of the Special Agent established a "fair probability" that evidence of Defendant's criminal activity would be found at his residence.
The affidavit also established probable cause to search Defendant's office at USF. Defendant argues that the only nexus between his USF office and the unlawful activity was Defendant's position as a USF Professor and the Special Agent's "bald assertions" that members of organizations commonly keep records of their membership at their office. This argument is belied by the affidavit.
In addition to the information acknowledged by Defendant, the Special Agent also referred to news reports, State Department records, and conversations with FBI officials to describe the formal agreement between WISE and USF to co-sponsor conferences on Middle East matters. He explained that, according to these sources, a conference invitation was extended to an individual convicted in Tunisia for the attempted assassination of the President of Tunisia. Additionally, the Special Agent stated that the FBI informed him that WISE had co-sponsored a visit to one of the conferences by the "identified leader of the Sudanese Islamic militant/terrorist movement." Finally, he stated that the FBI reported that USF officials terminated their joint agreement with WISE shortly after Shallah was identified as the new leader of the Islamic Jihad in November 1995. All of this information, combined with the information related to Defendant's use of WISE and ICP to support the PIJ and the Special Agent's conclusions drawn from his experience, was sufficient to authorize the search of Defendant's USF office.
The search of the WISE office suites was clearly appropriate since the affidavit established probable cause that Defendant had unlawfully omitted WISE from his naturalization application and he was using the organization to support the PIJ. Similarly, the search of the Peoples Storage facility was appropriate because the cancelled check was found at the WISE office suites, was written on the account of ICP, and was delivered to Peoples Storage as payment for a storage unit that Defendant was currently renting. Accordingly, all four warrants established the requisite nexus to the locations searched.
C. Particularity
Defendant contends that the scope of all five search warrants was overbroad. Defendant claims that the failure of the warrants to contain a "time limit" on any of the categories of items authorized to be seized permitted an unlawful "wholesale rummaging" of his homes and offices. Defendant also has challenged the scope of the February 2003 warrant because it authorized the seizure of foreign or U.S. currency, and various travel documents without providing for any limitations.
Defendant also contends that the scope of the search warrants were invalid because they did not contain a "single statutory limitation" and the specified categories contained therein allowed the officers to exercise discretion during the execution of the warrants. Defendant does not explain the import of his claim that these categories listed in the warrants should have incorporated a "statutory limitation." The Court construes this phrase as simply an alternative method of describing the particularity standard. Defendant's second argument that the warrants impermissibly granted the officers discretion by, for example, leaving undefined the terms "indicia of membership," "co-conspirators, "in association with," and "membership in," is unpersuasive. The position that a warrant may not grant any discretion to an executing officer has been affirmatively rejected by the Eleventh Circuit. See United States v. Wuagneux, 683 F.2d 1343, 1349 n. 4 (11th Cir. 1982), cert. denied, 464 U.S. 814. Additionally, defining all potentially ambiguous terms in a search warrant is not necessary, for officers are entitled to a "practical margin of flexibility" when drafting search warrants. See id. at 1349; see also United States v. Ventresca, 380 U.S. 102, 108 (1965) ("technical requirements of elaborate specificity once exacted under common law pleadings have no proper place" in testing the sufficiency of search warrant affidavits).
As noted in section I supra, the categories of items listed in the December 1995 warrant authorized a search and seizure of documents falling within eight (8) categories of items indistinguishable from certain categories listed in the November 1995 warrants. This Court's finding with respect to the November 1995 warrants will apply equally to the December 1995 warrant.
Defendant's contention that a "time limit" should have been included in every category of items listed in the search warrants is unpersuasive in light of the criminal activity the Special Agent and FBI Agent were investigating at the time the search warrants were authorized. The Fourth Amendment requires that search warrants "particularly" describe the items to be seized. U.S. Const. Amend. IV. This particularity requirement "must be applied with a practical margin of flexibility . . . and . . . a description of property will be acceptable if it is as specific as the circumstances and nature of the activity under investigation permit." United States. v. Wuagneux, 683 F.2d 1343, 1349 (11th Cir. 1982) cert. denied 464 U.S. 814. Where a warrant authorizes a search and seizure of a person's papers, "responsible officials, including judicial officials, must take care to assure that [the search is] conducted in a manner that minimizes unwarranted intrusions upon privacy." Andresen v. Maryland, 427 U.S. 463, 482 n. 11 (1976).
The affidavits in support of the November 1995 warrants established probable cause that Defendant was associated with WISE and ICP, Defendant facilitated Shallah's and Nafi's illegal entry into the United States, and Defendant used these organizations, with the help of Shallah and Nafi, to support a terrorist group located in the Middle East. By the time the February 2003 warrant was issued, the scope of the investigation extended to evidence that related to the asserted criminal conspiracy involving Defendant and several other "coconspirators."
Because of the nature of the activities under investigation in 1995 and 2003, law enforcement was authorized to search for and seize a large and diversified body of evidence. In 1995, such evidence would include any materials that might establish an affiliation between any of the interested parties (i.e., Defendant, Shallah, Nafi, WISE and ICP). These materials would include personal documents of Defendant, Shallah, and Nafi that were located at the WISE offices, because this would demonstrate their association with this organization. Likewise, personal documents of Shallah and Nafi found at Defendant's USF office or home would demonstrate an association between these two individuals and Defendant.
Other evidence obviously would include WISE or ICP organizational documents containing the names of the officers, employees or members of the organizations; WISE or ICP documents and records that were completed by or in the possession of Defendant, Shallah, or Nafi; and evidence of activities performed and financial transactions entered into by any of these individuals on behalf of WISE or ICP because all of these items would demonstrate Defendant's or Nafi's association with WISE.
These documents might also establish Shallah and Nafi's association with ICP since its record address was the same as Defendant's home.
The scope of the investigation in 1995 also authorized the seizure of any evidence relating to the operations of WISE and ICP and their use as vehicles for the support of the PIJ. Among other items, such information would include organizational financial records that reflect a level of expenditures, type of expenditures, or pattern of monetary transfers inconsistent with the organizations' purported aims. The personal financial records of Defendant, Shallah, and Nafi might also reflect the financial expenditures of the organization, since employees and especially officers of organizations commonly use personal funds for employer expenses and seek reimbursement thereafter.
These personal records would also demonstrate an association with these organizations if they were found among the organizations' records or in the organizations' offices.
Limiting the search and seizure of these sorts of items in the 1995 warrants based on the dates they were created was not required because the agents were authorized to search for evidence demonstrating an association among Defendant, Shallah, Nafi, WISE, and ICP. A personal credit card statement of Defendant, Shallah, or Nafi found at the WISE offices, for example, would demonstrate such an association no matter when the statement's closing date occurred. Likewise, the FBI Agent did not need to include a time limit in the categories of items listed in the February 2003 warrant because they related to the Defendant's association with the persons or organizations forming part of the conspiracy.
Because the investigations were directed at Defendant's association with terrorist groups and his support of their activities, any personal records of Defendant located in his homes or USF office that were created before ICP was incorporated might not be relevant to the officer's investigation. This is one subgroup of items, therefore, where a "time limit" might have been provided. To hold that a subgroup of one category of items had to be specifically delineated and given a time limitation, however, would ignore the "practical flexibility" to which officers are entitled when drafting the particular items to be searched for and seized.
As noted in the discussion above, personal documents of Defendant located at WISE, or personal documents of Shallah or Nafi in Defendant's home or USF office would be relevant to the investigation because it would establish proof of affiliation.
In this case, the November 1995 warrants were prepared together because they were all part of the same investigation, and the terms of the search warrants for Defendant's home, USF office, and the WISE office suites were nearly identical, differing only to the extent they were directed at different locations. Moreover, the categories of items listed in these search warrants were appropriately divided by the type of document, such as "membership rosters for ICP and WISE" or "travel records related to ICP, WISE, Sami Al-Arian, Ramadan Abdullah Shallah, and Basheer Nafi." The overwhelming majority of the categories identified in the search warrants were sufficiently particular. Under these circumstances, total suppression of all evidence properly seized pursuant thereto is not justified. See United States v. Cook, 657 F.2d 730, 735 (5th Cir. 1981); see also United States v. Diaz, 841 F.2d 1, 4 (1st Cir. 1988); United States v. Faul, 748 F.2d 1204, 1219 (8th Cir. 1984), cert. denied, 472 U.S. 1027; United States v. Christine, 687 F.2d 749, 759 (3d Cir. 1982) United States v. Spilotro, 800 F.2d 959, 967 (9th Cir. 1986).
The only remaining noteworthy challenge to the scope of the search warrants is Defendant's argument that the February 2003 warrant should not have authorized the seizure of foreign or U.S. currency, and travel documents without providing for appropriate limitations. Defendant does not identify what limits he believes each of these categories of items should have included, although he does object to the executing agents' "belief" that they could seize the passports of Defendant's minor children.
Defendant has also argued that the search for and seizure of undeveloped film should not have been authorized, and he contends that his First Amendment rights were implicated because books and other items were being seized "purportedly for their content." Both of these arguments are lacking in merit. The search for undeveloped film was permissible because the officers were searching for evidence supporting the criminal conspiracy charges and pictures of Defendant with other members of the listed organizations would have been relevant to the investigation. Contrary to Defendant's second contention, the basis for the seizure of books and other items was not the ideas which they contained: these items were relevant to his association with the listed organizations and the acts Defendant conducted on behalf of the PIJ.
To the extent Defendant argues a time limit should have applied to these categories, this issue has been addressed above. This Court can not conceive of any other reasonable limits that needed to be placed on currency and travel documents in light of the nature of the alleged criminal activity pending in February 2003. The alleged conspiracy involved meetings amongst the co-conspirators, solicitations of money from persons in different states, and the covert use of such moneys to finance terrorist group operations in the Middle East. Under these circumstances, it was appropriate for law enforcement to search for and seize U.S. and foreign currency found at Defendant's home. It was also appropriate to search for and seize all travel documents located at Defendant's home because such documents would reflect whether certain trips were familial in nature or were taken by Defendant alone in furtherance of the conspiracy.
D. Execution
Defendant's next challenge is directed at the execution of the November 1995 warrants and the February 2003 warrant. The thrust of Defendant's argument is that the officers executing the warrants operated as if they could seize items without being "bound by any limitations allegedly imposed by the affidavit." According to Defendant, "whole categories of items were taken without the law enforcement officers having any idea what they were seizing or whether the items had any relevance to the search authorized by the warrant." To support his characterization of the execution of the search warrants as a "general exploratory rummaging," Defendant lists a number of items that were seized that he contends "had nothing to do with any criminality or anything specified in the affidavit."Undoubtedly, the executions of these search warrants yielded a substantial amount of materials. Defendant calculates the length of the discovery index for the 1995 searches as two-hundred and forty-two (242) single spaced typewritten pages. According to the Government, this index is listed on four-hundred and thirty-six (436) pages and the index for the February 2003 warrant is listed on three-hundred and seven (307) pages.
These figures include the items seized during the 1995 search of the storage facility unit at People's Storage, but the items seized during this search appear to make up a very small portion of the items listed on the discovery index.
The magnitude of a search, however, does not automatically convert the execution of a search warrant into a general rummaging in violation of the Fourteenth Amendment. United States v. Sawyer, 799 F.2d 1494, 1509 (11th Cir. 1986). "Instead, the search may be as extensive as reasonably required to locate and seize items described in the warrant. The reasonableness of the search depends upon the complexity of the crime being investigated and the difficulty involved in determining whether certain documents evidence fraud." Id. (citing and quoting Wuagneux, 683 F.2d at 1352).
As described by Defendant, the items listed as evidence of a general warrant do not appear to fall within the categories listed in the respective search warrants. The suppression of only these items does not appear to be a concern of either party, however, for Defendant has not moved to suppress these enumerated items individually and the Government has not contested the suggestion that they fall outside the scope of the warrant. Defendant's only argument is that the execution of the search warrant constituted a wholesale rummaging that demands the suppression of all items seized. Assuming arguendo that each of the items listed by Defendant were outside the scope of the warrant, this Court finds that their seizure does not justify Defendant's proposed remedy of total suppression of the fruits of all four searches.
A party seeking the drastic remedy of suppression of all evidence, whether rightfully seized or not, must demonstrate that the executing officers' conduct constituted a "flagrant disregard" of the terms of the warrant. Wuagneux, 683 F.2d at 1354. Evidence of the seizure of items outside of a search warrant's scope does not satisfy this heightened standard of proof. United States v. Schandl, 947 F.2d at 465 ("[t]he seizure of items not covered by a warrant does not automatically invalidate an otherwise search"). "The crucial inquiry is always whether the search and seizures were reasonable under all the circumstances." Schandl, 947 F.2d at 465 ( citations omitted). This analysis requires consideration of "the scope of the warrant, the behavior of the search agents, the conditions under which the search was conducted, and the nature of the evidence being sought." Id. ( citations and quotations omitted). In this case, all of these factors weigh against the Defendant.
First, the scope of the warrants authorized the search and seizure of a substantial amount of material. In 1995, the agents were authorized to search for and seize evidence related to (i) Defendant's affiliation with WISE and ICP, (ii) Defendant's association with Shallah and Nafi, (iii) acts Defendant performed on behalf of Shallah and Nafi, (iv) Shallah and Nafi's affiliation with foreign terrorist organizations, (v) acts performed by Shallah and Nafi on behalf of foreign terrorist organizations, and (vi) the use of WISE and ICP to provide support to foreign terrorist organizations. All of these materials were subject to seizure because they related to the crimes under investigation. In 2003, the scope of the warrant was even broader since the investigation encompassed an alleged criminal conspiracy involving additional parties.
Second, the only objections Defendant has raised with respect to the officers' behavior was their seizure of a number of irrelevant and innocuous items. This evidence, by itself, is insufficient to demonstrate improper behavior on the part of the officers. See Schandl, 947 F.2d at 465 (acknowledging that it is "inevitable" that some irrelevant materials will be seized when agents are searching for evidence of complex crimes); cf. Gurleski v. United States, 405 F.2d 253, 258 (5th Cir. 1968) ("[t]he search must be one directed in good faith towards the objects specified in the warrant or for other means and instrumentalities by which the crime charged had been committed"). In light of the enormous number of items not challenged by Defendant, this Court is not convinced by the argument that those executing the warrants were operating in bad faith.
Third, the conditions under which the officers conducted the searches were fairly demanding. The officers conducted five searches at different locations and many of the documents were written in Arabic, a language most of the executing officers did not speak. Fourth, the nature of the evidence the agents were seeking imposed significant challenges due to the crimes under investigation. Rather than being able to recognize immediately the criminal nature of the sought-after evidence, the officers were required to examine, understand, and in many cases, translate written documents to discern whether facts contained therein reflected evidence that Defendant violated U.S. immigration laws or that related to a secret criminal conspiracy to support foreign terrorist organizations.
The execution of the November 1995 warrants, by Defendant's own admission, yielded a discovery index that is two-hundred and forty-two (242) single spaced typewritten pages long. Based on the Government's figures, the number of items seized pursuant to the February 2003 warrant runs for over three hundred pages. As with the execution of the search inSchandl, which resulted in the seizure of documents related to the defendant's son's rhinoplasty, a bible home study course, a rolodex, a box of letters from the defendant's mother and father, tax protester manuals, and other personal items, it was "inevitable" that the officers in this case would seize some irrelevant materials. See Schandl, 947 F.2d at 465. Under these conditions, the officers' retrieval of innocent personal documents constituting an insignificant portion of the amount of materials seized does not evince a "flagrant disregard" for the scope of the warrants justifying the remedy of total suppression.
E. Material Omissions
Finally, Defendant argues that he is entitled to a Franks hearing because of alleged factual omissions made by the FBI Agent in the affidavit to the February 2003 warrant. In Franks v. Delaware, 438 U.S. 154, 155-156 (1978), the Supreme Court held that "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request." A defendant is entitled to a Franks hearing if his allegations of deliberate falsehood or reckless disregard for the truth are "accompanied by an offer of proof."Id. at 171; see also United States v. Cross, 928 F.2d 1030, 1040 (11th Cir. 1991) (a "concrete preliminary showing" must be made to receive a hearing under Franks), cert. denied, 502 U.S. 985. "Allegations of negligence or innocent mistake are insufficient." Id.
Defendant highlights four statements that he contends were material to the magistrate's probable cause determination and omitted by the FBI Agent with "reckless disregard." He argues that the February 2003 warrant affidavit should have informed the magistrate that ICP became dormant prior to the search in 1995; that WISE ceased to exist after the search in 1995; that "substantial portions" of the materials seized during the 1995 search warrants were returned to Defendant several months after these search warrants were executed; that the Government was attempting to reacquire these materials it had previously seized and returned; and that WISE "was doing no fundraising."
Other than the assertion that the FBI Agent omitted these statements recklessly and with disregard for the truth, Defendant has not presented any evidence demonstrating that these matters were within the FBI Agent's knowledge at the time he submitted his affidavit. For this reason alone, Defendant is not entitled to a Franks hearing or a suppression of the evidence.
Defendant did insert in his Motion portions of the Special Agent's testimony in August 2003, at which time the Special Agent admitted that he did not have "any open source evidence that WISE raised money for any other organization." This information fails to satisfy the "substantial preliminary showing" standard demanded by Franks for numerous reasons. First, the Special Agent's statement that he does not have any "open source evidence" that WISE was used as a fund-raising entity is not inconsistent with the allegations in the affidavit related to the Defendant's use of WISE. Second, there is no evidence that the Special Agent and the FBI Agent were privy to the same information the Government had in its possession. Third, the FBI Agent who actually submitted the February 2003 affidavit submitted his affidavit in February 2003: the Special Agent's testimony related to what he knew as of August 2003.
Assuming arguendo that Defendant did come forth with a "concrete preliminary showing," the information Defendant refers to would not have prevented the magistrate from issuing the February 2003 warrant. The FBI Agent's affidavit set forth sufficient facts to demonstrate that the alleged criminal conspiracy was operating and raising funds well beyond the end of 1995, the date Defendant states WISE and ICP no longer existed. Moreover, the magistrate judge's probable cause determinations do not appear related whatsoever to whether the government returned to Defendant evidence it had seized in 1995. Because Defendant has failed to make a "substantial preliminary showing" that these statements were necessary to the magistrate's finding of probable cause, neither a Franks hearing nor the suppression of evidence is warranted.
III. Conclusion
The procurement, issuance and execution of the November 1995 warrants, the December 1995 warrant, and the February 2003 warrant were all consistent with the Defendant's constitutional protections. Accordingly, Defendant is not entitled to the total suppression of all evidence obtained by law enforcement during the execution of these warrants.
It is therefore ORDERED and ADJUDGED that Defendant's Motion to Suppress (Dkt. #784) is DENIED. DONE and ORDERED.