272 F.Supp.2d 348 (S.D.N.Y. 2003), 02 CR. 395, United States v. Sattar

Docket Nº:02 CR. 395(JGK).
Citation:272 F.Supp.2d 348
Party Name:UNITED STATES of America, v. Ahmed Abdel SATTAR, a/k/a "Abu Omar," a/k/a "Dr. Ahmed," Yassir Al-Sirri, a/k/a "Abu Ammar," Lynne Stewart, and Mohammed Yousry, Defendants.
Case Date:July 22, 2003
Court:United States District Courts, 2nd Circuit, Southern District of New York
 
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272 F.Supp.2d 348 (S.D.N.Y. 2003)

UNITED STATES of America,

v.

Ahmed Abdel SATTAR, a/k/a "Abu Omar," a/k/a "Dr. Ahmed," Yassir Al-Sirri, a/k/a "Abu Ammar," Lynne Stewart, and Mohammed Yousry, Defendants.

No. 02 CR. 395(JGK).

United States District Court, S.D. New York.

July 22, 2003

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Robin L. Baker, Christopher J. Morvillo, Anthony S. Barkow, Jennifer G. Rodgers, Jessica A. Roth, Asst. U.S. Attys., James B. Comey, U.S.Atty., S.D.N.Y., for Plaintiff.

Barry M. Fallick, Kenneth Paul, Bobbi C. Sternheim, Jillian S. Harrington, Rochman Platzer Fallick & Sternheim, LLP, New York City, for Defendant Sattaro.

Michael E. Tigar, Jane B. Tigar, Steven P. Ragland, The Tigar Law Firm, Annapolis, MD, for Defendant Stewart.

David Stern, Rothman, Schneider, Soloway & Stern, P.C., New York City, for Defendant Yousry.

OPINION AND ORDER

KOELTL, District Judge.

The defendants in this case--Ahmed Abdel Sattar, a/k/a "Abu Omar," a/k/a "Dr. Ahmed" ("Sattar"), Yassir Al-Sirri, a/k/a "Abu Ammar" ("Al-Sirri"), Lynne Stewart ("Stewart") and Mohammed Yousry ("Yousry")--were charged in a five-count indictment on April 8, 2002 ("Indictment"). The First Count of the Indictment charges Sattar, Al-Sirri, Stewart and Yousry, together with others known and unknown with conspiring to provide material support and resources to a foreign terrorist

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organization ("FTO") in violation of 18 U.S.C. § 2339B. Count Two charges each of the defendants with providing and attempting to provide material support and resources to an FTO in violation of 18 U.S.C. §§ 2339B and 2. Count Three charges Sattar and Al-Sirri with soliciting persons to engage in crimes of violence in violation of 18 U.S.C.§ 373. Count Four charges Sattar, Stewart and Yousry with conspiring to defraud the United States in violation of 18 U.S.C. § 371. Finally, Count Five charges Stewart with making false statements in violation of 18 U.S.C.§§ 1001 and 2. Defendants Sattar, Stewart and Yousry now move to dismiss the Indictment on various grounds. 1

I.

The Indictment alleges the following facts. At all relevant times, the Islamic Group, a/k/a "Gama'a al-Islamiyya," a/k/a/ "IG," a/k/a "al-Gama'at," a/k/a "Islamic Gama'at," a/k/a/ "Egyptian al-Gama'at al Islamiyya," ("IG"), existed as an international terrorist group dedicated to opposing nations, governments, institutions, and individuals that did not share IG's radical interpretation of Islamic law. (Ind.¶ 1.) IG considered such parties "infidels" and interpreted the concept of "jihad" as waging opposition against infidels by whatever means necessary, including force and violence. (Ind.¶ 1.) IG regarded the United States as an infidel and viewed the United States as providing essential support to other infidel governments and institutions, particularly Israel and Egypt. (Ind.¶ 2.) IG also opposed the United States because the United States had taken action to thwart IG, including by the arrest, conviction, and continued confinement of its spiritual leader Omar Ahmad Ali Abdel Rahman, a/k/a "Omar Ahmed Ali," a/k/a "Omar Abdel Al-Rahman," a/k/a "The Sheikh," a/k/a "Sheikh Omar" ("Sheikh Abdel Rahman"). (Ind.¶ 2.)

IG has allegedly operated in the United States from the early 1990s until the date of the filing of the Indictment, particularly in the New York metropolitan area. (Ind.¶ 12.) According to the Indictment, IG's objectives in the United States include (1) the establishment of the United States as a staging ground for violent acts against targets in the United States and abroad; (2) the recruitment and training of members; and (3) fundraising for jihad actions in the United States and overseas. (Ind.¶ 12.) Since Sheikh Abdel Rahman's imprisonment, the Indictment alleges that IG members in the United States have also functioned as a worldwide communications hub for the group, in part by facilitating communications between IG leaders and Sheik Abdel Rahman. (Ind.¶ 12.) IG was designated as a foreign terrorist organization by the Secretary of State on October 8, 1997 pursuant to Title 8, United States Code, Section 1189 and was redesignated as such on October 8, 1999 and again on October 5, 2001. (Ind.¶ 18.)

The Indictment alleges that Sheikh Abdel Rahman has been one of IG's principal leaders and a high-ranking member of jihad organizations based in Egypt and elsewhere since the early 1990s. (Ind.¶ 4.) Sheikh Abdel Rahman allegedly became an "emir" or leader of IG in the United States. (Ind.¶ 4.) Under his leadership, IG subordinates carried out the details of specific jihad operations while shielding Sheikh Abdel Rahman from prosecution. (Ind.¶ 4.) The Indictment charges that Sheik Abdel Rahman, among other things, provided guidance about what actions, including acts of terrorism, were permissible or forbidden under his interpretation of Islamic law; gave strategic advice on how to achieve IG's goals; recruited persons

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and solicited them to commit violent jihad acts; and sought to protect IG from infiltration by law enforcement. (Ind.¶ 4.)

Sheikh Abdel Rahman was convicted in October 1995 of engaging in a seditious conspiracy to wage a war of urban terrorism against the United States, including the 1993 World Trade Center bombing and a plot to bomb New York City landmarks. (Ind.¶ 5.) He was also found guilty of soliciting crimes of violence against the United States military and Egyptian President Hosni Mubarak. (Ind.¶ 5.) In January 1996 Sheik Abdel Rahman was sentenced to life imprisonment plus 65 years. (Ind.¶ 5.) His conviction was affirmed on appeal and, on January 10, 2000, the United States Supreme Court denied his petition for a writ of certiorari. (Ind.¶ 5.)

Sheikh Abdel Rahman has been incarcerated at the Federal Medical Center in Rochester, Minnesota since in or about 1997. (Ind.¶ 5.) IG has allegedly taken repeated steps to win Sheikh Abdel Rahman's release. (Ind.¶ ¶ 8-11.) Such steps include the issuance of a statement in response to Sheikh Abdel Rahman's life sentence that warned that "[a]ll American interests will be legitimate targets for our struggle until the release of Sheikh Omar Abdel Rahman and his brothers" and that IG "swears by God to its irreversible vow to take an eye for an eye." (Ind.¶ 8.) Also, on or about November 17, 1997, six assassins shot and stabbed a group of tourists at an archeological site in Luxor, Egypt killing fifty-eight tourists and four Egyptians. (Ind.¶ 9.) Before exiting, the Indictment charges, the assassins scattered leaflets calling for Sheikh Abdel Rahman's release and inserted one such leaflet into the slit torso of one victim. (Ind.¶ 9.)

The Bureau of Prisons, at the direction of the Attorney General, imposed Special Administrative Measures ("SAMs") upon Sheikh Abdel Rahman. (Ind.¶ 6.) The SAMs limited certain privileges in order to protect " 'persons against the risk of death or serious bodily injury' that might otherwise result." (Ind.¶ 6.) The limitations included restrictions on Sheikh Abdel Rahman's access to the mail, the telephone, and visitors, and prohibited him from speaking with the media. (Ind.¶ 6.) All Counsel for Sheik Abdel Rahman were obligated to sign an affirmation acknowledging that they and their staff would abide fully by the SAMs before being allowed access to their client. (Ind.¶ 6.) In the affirmation, counsel agreed to "only be accompanied by translators for the purpose of communicating with the inmate Abdel Rahman concerning legal matters." (Ind.¶ 7.) Since at least in or about May 1998, counsel agreed not to use "meetings, correspondence, or phone calls with Abdel Rahman to pass messages between third parties (including, but not limited to, the media) and Abdel Rahman." (Ind.¶ 7.)

Defendant Stewart was Sheikh Abdel Rahman's counsel during his 1995 criminal trial and has continued to represent him since his conviction. (Ind.¶ 16.) The Indictment alleges that over the past several years, Stewart has facilitated and concealed messages between her client and IG leaders around the world in violation of the SAMs limiting Sheik Abdel Rahman's communications from prison. (Ind.¶ 16.) During a May 2000 visit to Sheikh Abdel Rahman in prison, Stewart allegedly allowed defendant Yousry, who acted as the Arabic interpreter between Sheikh Abdel Rahman and his attorneys, to read letters from defendant Sattar and others regarding IG matters and to discuss with her client whether IG should continue to comply with a cease-fire that had been supported by factions within IG since in or about 1998. (Ind.¶ ¶ 15-16.) According to the Indictment, Yousry provided material support and resources to IG by covertly passing messages between IG representatives and Sheik Abdel Rahman regarding

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IG's activities. (Ind.¶ 15.) The Indictment alleges that Stewart took affirmative steps to conceal the May 2000 discussions from prison guards and subsequently, in violation of the SAMs, announced to the media that Sheikh Abdel Rahman had withdrawn his support for the cease-fire. (Ind.¶ 16.) The Indictment charges that in or about May 2000 Stewart submitted an affirmation to the United States Attorney's Office for the Southern District of New York (the "May Affirmation") that falsely stated, among other things, that she agreed to abide by the terms of the SAMs applicable to Sheikh Abdel Rahman and that she would not use her meetings, correspondence or phone calls with Sheikh Abdel Rahman to pass messages between Sheikh Abdel Rahman and third parties including but not limited to the media. (Ind.¶ 30.)

The Indictment also charges that Sattar is an active IG leader who serves as a vital link between Sheik Abdel Rahman and the worldwide IG membership...

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