Indeed, the assessment of multiplicity with respect to these counts is vitally important because permitting each charge under separate statutes would result in a vast multiple in terms of possible punishment, and could be the difference of decades in the length of Mr. Mostafa’s potential statutory exposure if he is convicted on both counts in any of the paired sets described above. Conclusion For all the reasons set forth above, it is respectfully submitted that Mr. Mostafa’s motions for: (1) the dismissal of Counts One and Two because they do not establish sufficient nexus between Mr. Mostafa and the United States to warrant extraterritorial application of 18 U.S.C. §1203, and because the charges thus deny Mr. Mostafa his Fifth Amendment constitutional right to Due Process; (2) the dismissal of Counts Seven through Ten because they do not establish sufficient nexus between Mr. Mostafa and the United States to warrant extraterritorial application of 18 U.S.C. §2339A, and because charges thus deny Mr. Mostafa his Fifth Amendment constitutional right to Due Process; (3) the dismissal of Count Eleven because it does not establish sufficient nexus between Mr. Mostafa and the United States to warrant extraterritorial application of IEEPA, and because the charge thus denies Mr. Mostafa his Fifth Amendment constitutional right to Due Process; (4) the dismissal of the Indictment for failure to state an offense; (5) the 64 Case 1:04-cr-00356-KBF Document 175 Filed 04/08/13 Page 74 of 75 dismissal of Counts Three, Four, Seven, and Eight, because each fails to identify the requisite conspiracy under 18 U.S.C. §956; (6) the Court to compel the government to produce the requested Bill of Particulars; (7) the striking of irrelevant and prejudicial surplusage from the Indictment, pursuant to Rule 7(d), Fed.R.Crim.P., including references to Usama Bin Laden’s leadership of al Qaeda, and impermissible broadening phrases such as “others known and unknown,”

Conclusion The defendant is being accused of providing, attempting to provide, and conspiring to provide material support to terrorists. These charges are based upon an unascertainable standard under 18 U.S.C. § 2339A and 18 U.S.C. § 2339B as to what conduct is protected by the First Amendment and what is not. For the above reasons, the defendant requests that this Court dismiss Counts One through Three of the Second Superseding Indictment on vagueness and overbreadth grounds.

Offering online services like Twitter, YouTube, and Facebook is not itself violent or dangerous, nor is it made so simply because a terrorist (along with billions of other users) might use those platforms in violation of their terms of service. Although some courts have suggested that anything qualifying as “material support” under 18 U.S.C. § 2339A might meet the “violent act or acts dangerous to human life” element, e.g., Linde, 97 F. Supp. 3d at 328, that suggestion contravenes the language and structure of Section 2331(1), which makes clear that it is the defendant’s acts—not those of the person who allegedly received “material support”—that must satisfy the statutory elements of “international terrorism.” E.g., Stutts, 2006 U.S. Dist. LEXIS 47638, at *2 (under the “plain language” of Section 2333, engaging in commercial banking activity does not constitute “violent acts or acts dangerous to human life”).

The Grand Jury charges that: CRIMINAL NO. VIOLATION: 18 U.S.C. § 2339A (Conspiracy to Provide Material Support and Resources to Terrorists Resulting in Death) INDICTMENT COUNT ONE (Conspiracy to Provide Material Support and Resources to Terrorists Resulting in Death) Beginning on a date unknown to the Grand Jury but no later than on or about September 11, 2012, and continuing until on or about September 12, 2012, in Libya, that is, outside the jurisdiction of any particular state or district, but within the extraterritorial jurisdiction of the United States, and pursuant to Title 18, United States Code, Section 3238, within the venue of the United States District Court for the District of Columbia, defendant AHMED ABU KHATALLAH, also known as, Ahmed Mukatallah, did knowingly and intentionally conspire and agree with other conspirators, known and unknown to the Grand Jury, to provide material support and resources to terrorists, that is, personnel including himself and others, as defined in Title 18, United States Code, Section 2339A(b)(1),

at 530. See also United States v. Kassir, No. 04 Cr. 356(JFK), 2009 WL 2913651, at *9 (S.D.N.Y. Sept. 11, 2009) (rejecting a vagueness as-applied challenge to 18 U.S.C. § 2339B and holding that “knowingly providing jihad training to young men and disseminating training manuals online for the benefit 4 As noted above, 18 U.S.C. § 2339A proscribes “providing material support to terrorists,” knowing or intending that it will be used in preparation for or in carrying out a specifically listed predicate offense. Section 2339B proscribes the provision of material support to a foreign terrorist organization that has been specifically designated as such under Section 219 of the Immigration and Nationality Act.

It is thus unsurprising that the ATA’s material support statutes prohibit not only providing money to terrorists groups, but also “any property, tangible or intangible, or service,” which expressly includes “communications equipment.” 18 U.S.C. 2339A(b)(1). “The material-support statute is, on its face, a preventive measure—it criminalizes not terrorist attacks themselves, but aid that makes the attacks more likely to occur.”

A. Hasbajrami has not raised a substantive claim. The primary habeas claim pending before this Court is Hasbajrami’s challenge to the constitutionality of 18 U.S.C. § 2339A, an issue unrelated to the nature and legality of the collection of the evidence that would have been used to prove his guilt of that crime in the criminal case. Although the motion for discovery is premised on the proposition that Hasbajrami might decide to seek to withdraw his guilty plea, he has not made such a claim.

Recognizing the importance of these kinds of resources to terrorists, the ATA even defines “material support or resources” as including “any property, tangible or intangible, or service” such as “communications equipment.” 18 U.S.C. §§ 2339A(b)(1); 2339B(g)(4). Twitter accounts undoubtedly meet this definition.

at 3, reflects Twitter’s decision about which voices may be heard, and so “what content can appear,” on its platform, Backpage, 817 F.3d at 21. Thus, “even if we assume, for argument’s sake, that [Twitter’s] conduct amounts to” material support under 18 U.S.C. §§ 2339A & 2339B, Plaintiffs’ claims “premise that [support] on [Twitter’s] actions as a publisher or speaker of third-party content.” Backpage, 817 F.3d at 21 (rejecting plaintiffs’ TVPRA claims as based on Backpage’s role as a publisher).

(Indictment, Count Two, ¶ 28). C. Count Three The government has charged the defendant with providing or attempting to provide material support to terrorists, in violation of 18 U.S.C. § 2339A. The government’s allegations merely mirror the language of the statute.