United States v. Doe

Decision Date29 October 2015
Docket Number15–CR–302 (MKB)
Citation145 F.Supp.3d 167
Parties United States of America, v. John Doe, Defendant.
CourtU.S. District Court — Eastern District of New York

Alexander A. Solomon, Douglas M. Pravda, Ian Craig Richardson, U.S. Attorney's Office, Brooklyn, NY, for United States of America.

Richard D. Willstatter, Green & Willstatter, White Plains, NY, Maryam Jahedi, Maryam Jahedi Law Firm, New York, NY, for Defendant.

MEMORANDUM & ORDER

MARGO K. BRODIE

, United States District Judge

On June 15, 2015, the government filed a sealed Juvenile Information against Defendant John Doe, charging him with one count of conspiracy to provide material support to a Foreign Terrorist Organization in violation of 18 U.S.C. § 2339B

.1 (Docket Entry No. 8.) On July 14, 2015, the government moved pursuant to 18 U.S.C. § 5032 to transfer Defendant for adult criminal prosecution. On September 22, 2015, the Court conducted an evidentiary hearing and heard oral argument on the government's motion. For the reasons discussed below, the Court grants the government's motion and transfers Defendant for adult criminal prosecution.

I. Background

The charges in the Juvenile Information stem from Defendant's alleged participation in a conspiracy to provide material support to a Foreign Terrorist Organization (“FTO”),2 specifically, the Islamic State of Iraq and the Levant (“ISIL”).3 Defendant's arrest, and the subsequent charges, followed an investigation by the Federal Bureau of Investigation's Joint Terrorism Task Force (“JTTF”) into the activities of Defendant and others, including Munther Omar Saleh. (GX1 ¶ 3.4 )

a. Defendant's background and relationship with Saleh

Defendant, a United States citizen, was born on [redacted text], and, prior to his arrest, lived in Queens, New York. (GX 1 ¶ 4; GX 2.) Saleh was Defendant's friend, who also lived in Queens before being arrested with Defendant. (GX 1 ¶¶ 3, 5.) Defendant and Saleh visited and prayed at the same mosque in Queens and sometimes discussed spirituality, religion and politics together, and Defendant sometimes sought “religious guidance” from Saleh.5 (GX 1 ¶¶ 17, 19; GX 14B; Sept. 22, 2015 Hr'g Tr. (“Tr.”) 88:5–90:1.) Defendant and Saleh would also discuss ISIL. (GX 1 ¶ 14; GX 14A.)

Through judicially authorized surveillance, law enforcement learned that Defendant and Saleh discussed their admiration for ISIL and the organization's tactics and goals. (GX 1 ¶ 14; GX 14A.) In May of 2015, Defendant sent a text-message to Saleh, stating, “I've been looking more into it ... we should talk in person ... Bro ... we have this Friday too so you can tell me more about it .... it just makes sense.” (GX 1 ¶ 14 (ellipses in original); GX 14A.) In response, Saleh asked Defendant, “U mean establishing Islam the same way the Prophet (saaws) did?” to which Defendant replied, “Yeah and dude it's like their [sic] doing it step by step and perfectly ... The exact ways and rules of the prophet ... I was watching an inside doc on dawlah.”6 (GX 1 ¶ 14 (ellipses in original); GX 14A.) Defendant then stated “Inshallah we can meet up lol ... my brother also gets back tomorrow,” to which Saleh replied, “haha alhamdulilah we can continue this talk in person;)).” (GX 1 ¶ 14; GX 14A.) Later that day, Defendant planned to pick up Saleh, and when Saleh text-messaged Defendant to ask where they were going, Defendant jokingly responded “Dawla, no kiddin', the masjid.” (GX 1 ¶ 14.)

On or about June 10, 2015, Defendant accessed websites related to ISIL, Islamic pronouncements about the use of violence, and the role of jihadist theology in armed conflict. (GX 1 ¶ 20.) Two days later, Defendant discussed religious beliefs with another individual who remarked that he wanted to help homeless people but had been “bothered” by the police for doing so. (GX 1 ¶ 21.) In response, Defendant stated that he did not “go by those laws” and was “down for the trouble,” stating, [e]ven if I did get arrested, I'd be happy [because] we did [it] for a right reason.” (GX 1 ¶ 21 second and third alterations in original).)

b. Defendant and Saleh's alleged plot and subsequent arrest

According to the government's submissions, the JTTF's investigation uncovered Defendant's efforts to assist Saleh in a plan to prepare an explosive device for detonation in the New York metropolitan area. (GX 1 ¶¶ 8–9, 11.) On or about May 7, 2015, Saleh emailed himself information about constructing a “pressure cooker bomb,” which included lists of the components for such a device. (GX 1 ¶ 9.) That day, Saleh told a confidential source that he was “in N.Y. and trying to do an Op[eration].” (GX 1 ¶ 10; Tr. 41:1—3.) On or about May 17, 2015, Defendant accessed an internet-marketplace and viewed various items, including a sewing machine, chemistry model, drill, lava lamp, a pair of “FDA Approved” work gloves and an “Instant Pot” pressure cooker with an electronic timer. (GX 1 ¶ 22.) The government alleges that Defendant's banking records, which revealed unusually large cash withdrawals, shows that Defendant supported Saleh financially in Saleh's efforts to acquire the components for an explosive device. (GX 1 ¶¶ 24–25.)

On or about May 29, 2015, Defendant told Saleh that while Defendant was driving, he noticed a law enforcement vehicle following him and was able to evade and then follow the vehicle. (GX 1 ¶ 27.) Defendant told Saleh that he had seen law enforcement following him in the past, and believed that they were likely listening to their phone calls. (Id. ) On or about June 9, 2015, Defendant also informed a third-party that he knew law enforcement was surveilling him and that his phone calls were being recorded, (GX 1 ¶ 28.) Defendant also discussed how to evade law enforcement surveillance. (Id. )

In the early morning hours of June 19, 2015, while conducting surveillance, law enforcement observed an unnamed co-conspirator driving Defendant and Saleh in a sport utility vehicle (“SUV”). (GX 1 ¶ 32.) Law enforcement observed them visit a car-wash where they vacuumed the interior of the vehicle. (Id. ) Thereafter, law enforcement observed the SUV perform “anti-surveillance maneuvers” and then follow another law enforcement vehicle that had been surveilling the SUV. (Id. ) At approximately 4:00 AM, both the SUV and a law enforcement vehicle stopped at an intersection. (GX 1 ¶ 33.) Defendant and Saleh got out of the SUV and approached the law enforcement vehicle but then got back into to the SUV. (Id. ) Thereafter, Defendant and Saleh got out of the SUV again, this time running towards the law enforcement vehicle on each of its sides. (Id. ) As Defendant and Saleh approached the law enforcement vehicle, the driver of that vehicle reversed the vehicle to escape, and a second law enforcement vehicle arrived on the scene. (Id.) The driver of the second law enforcement vehicle ordered Defendants to the ground at gunpoint. (GX 1 ¶¶ 33–34; Tr. 78:25–79:11; Gov. Mem. 3.) Defendant and Saleh were then arrested.7

II. Discussion
a. Standard of review

Under the JDA, a juvenile who is at least fifteen-years-old, and who has allegedly committed an act that, if committed by an adult, “would be a felony that is a crime of violence,” may be prosecuted as an adult if the Attorney General moves to transfer the juvenile for adult criminal prosecution, and a district court “finds that it is ‘in the interest of justice’ to grant a transfer.” United States v. Nelson, 68 F.3d 583, 588 (2d Cir.1995)

( “Nelson I ”) (quoting 18 U.S.C. § 5032 ).

In weighing a motion to transfer, the district court must consider six factors:

(1) the juvenile's age and social background; (2) the nature of the offense alleged; (3) the nature and extent of any prior delinquency record; (4) present psychological maturity and intellectual development; (5) the juvenile's response to past treatment efforts and the nature of those efforts; and (6) available programs that are designed to treat the juvenile's behavior problems.” United States v. Sealed Defendant 1, 563 Fed.Appx. 91, 91 (2d Cir.2014)

(quoting Nelson I, 68 F.3d at 588 ).

“In deciding whether to transfer a juvenile defendant to adult status, the district court need not accord each of the six factors equal weight—the court may balance the factors in any manner it feels appropriate.” United States v. Nelson, 90 F.3d 636, 640 (2d Cir.1996)

( “Nelson II ”). The court's inquiry is “permeated” by the juvenile system's goal of rehabilitation. See

Nelson II, 90 F.3d at 640. “Nevertheless, even though a juvenile's potential for rehabilitation is a ‘crucial determinant in the transfer decision,’ this factor ‘must be balanced against the threat to society posed by juvenile crime.’ United States v. Juvenile Male, 844 F.Supp.2d 312, 316 (E.D.N.Y.2011) (quoting Nelson II, 90 F.3d at 640 ). As a result, a “glimmer of hope” for future rehabilitation is insufficient, and the court must determine if the juvenile is likely to respond to rehabilitative efforts by striking the “appropriate balance [between] ... affording a defendant juvenile status when rehabilitation will work (and the rehabilitative goals of the juvenile system will be achieved), and allowing transfer to adult status when it will not (and the concerns of public protection and punishment become paramount).” Juvenile Male, 844 F.Supp.2d at 316 (quoting Nelson II, 90 F.3d at 640 ). Given the presumption in favor of juvenile adjudication, “the burden is ‘on the government to establish that transfer to adult status is warranted.’ United States v. Ramirez, 297 F.3d 185, 192 (2d Cir.2002) (quoting Nelson I, 68 F.3d at 588 ).

b. Qualifications for transfer

The government asserts that it has established the statutory prerequisites for transfer and that the six relevant factors weigh in favor of transfer. (Gov.Mem.23.) Defendant does not contest certain statutory requirements: he admits that he was seventeen-years-old at the time of the charged crime and that the Attorney General has approved his transfer for adult criminal pros...

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