314 F.Supp.2d 279 (S.D.N.Y. 2004), S1 02 395, United States v. Sattar

Docket Nº:S1 02 395JGK.
Citation:314 F.Supp.2d 279
Party Name:UNITED STATES OF AMERICA v. Ahmed Abdel SATTAR, a/k/a "Abu Omar," a/k/a "Dr. Ahmed," Lynne Stewart, and Mohammed Yousry, Defendants.
Case Date:April 20, 2004
Court:United States District Courts, 2nd Circuit, Southern District of New York
 
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314 F.Supp.2d 279 (S.D.N.Y. 2004)

UNITED STATES OF AMERICA

v.

Ahmed Abdel SATTAR, a/k/a "Abu Omar," a/k/a "Dr. Ahmed," Lynne Stewart, and Mohammed Yousry, Defendants.

No. S1 02 395JGK.

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

April 20, 2004

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David N. Kelley, U.S. Atty., Robin L. Baker, Christopher Jude Morvillo, Anthony S. Barkow, and Andrew S. Dember, Asst. U.S. Attys., U.S. Atty's Office, New York, NY, for U.S.

Barry M. Fallick, Kenneth Paul, Jillian S. Harrington, Paul Knepper, Trisha LaFache, Rochman Platzer Fallick & Sternheim, LLP, New York, NY, for defendant Sattar.

Michael E. Tigar, and Steven P. Ragland, The Tigar Law Firm, Annapolis, MD, Jill R. Shellow-Lavine, Law Offices of Jill R. Shellow-Lavine, Southport, CT, for defendant Stewart.

David Stern, Rothman, Schneider, Soloway & Stern, P.C., New York, NY, David Ruhnke, Ruhnke & Barrett, for defendant Yousry.

OPINION and ORDER

KOELTL, District Judge.

The defendants--Ahmed Abdel Sattar ("Sattar"), Lynne Stewart ("Stewart"), and Mohammed Yousry ("Yousry")--were charged in a seven-count superseding indictment

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("S1 Indictment") filed on November 19, 2003. Count One of the S1 Indictment charges Sattar, Stewart, and Yousry with conspiring to defraud the United States in violation of 18 U.S.C. § 371. Count Two charges Sattar with conspiring to murder and kidnap persons in a foreign country in violation of 18 U.S.C. §§ 956(a)(1) and (a)(2)(A). Count Three charges Sattar with soliciting persons to engage in crimes of violence in violation of 18 U.S.C. § 373. Count Four charges Stewart and Yousry with conspiring, in violation of 18 U.S.C. § 371, to provide and conceal material support to be used in preparation for, and in carrying out, the conspiracy alleged in Count Two. Count Five charges Stewart and Yousry with a substantive count of providing and concealing material support to the Count Two conspiracy, in violation of 18 U.S.C. §§ 2339A and 2. Counts Six and Seven charge Stewart with making false statements in violation 18 U.S.C. § 1001.

The S1 Indictment supersedes a five-count indictment filed on April 8, 2002 ("original indictment"). Count One of the original indictment charged Sattar, Stewart, Yousry, and Yassir Al-Sirri, a defendant not charged in the S1 Indictment, with conspiring to provide material support and resources to a foreign terrorist organization ("FTO") in violation of 18 U.S.C. § 2339B. Count Two charged the same 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 charged Sattar and Al-Sirri with soliciting persons to engage in crimes of violence in violation of 18 U.S.C. § 373. Count Four charged Sattar, Stewart, and Yousry with conspiring to defraud the United States in violation of 18 U.S.C. § 371. And Count Five charged Stewart with making false statements in violation of 18 U.S.C. §§ 1001 and 2. United States v. Sattar, 272 F.Supp.2d 348, 352-53 (S.D.N.Y.2003).

Sattar, Stewart, and Yousry moved to dismiss the original indictment on various grounds. The defendants argued, among other things, that Counts One and Two were unconstitutionally vague as applied to the conduct alleged against them in the original indictment. Counts One and Two charged the defendants with conspiring to provide, and providing, material support and resources to the Islamic Group, an organization led by Sheikh Abdel Rahman that had been designated an FTO by the Secretary of State. 1 Section 2339B of Title 18 incorporates the definition of "material support or resources" from § 2339A, and the definition includes, among other things, "personnel" and "communications equipment." Sattar, 272 F.Supp.2d at 356. In an Opinion and Order dated July 22, 2003, the Court granted the defendants' motion to dismiss Counts One and Two of the original indictment as void for vagueness as applied to the allegations in the original indictment, where the defendants were alleged in part to have "provided" material support by providing themselves as "personnel" and to have provided "communications equipment" by using their own telephones. Sattar, 272 F.Supp.2d at 357-61.

The Government filed the S1 Indictment on November 19, 2003. Sattar and Stewart now move to dismiss the S1 Indictment on numerous grounds. 2 They also move

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for a bill of particulars and various other relief.

I

A

The S1 Indictment alleges the following facts. From at least the early 1990's until in or about April 2002, Omar Ahmad Ali Abdel Rahman, a/k/a "the Sheikh," a/k/a "Sheikh Omar" ("Sheikh Abdel Rahman"), an unindicted alleged co-conspirator in Counts One and Two, was an influential and high-ranking member of terrorist organizations based in Egypt and elsewhere. (S1 Ind. ¶ 1.) Sheikh Abdel Rahman allegedly considered nations, governments, institutions, and individuals that did not share his radical interpretation of Islamic law to be "infidels" and interpreted the concept of "jihad" to compel the waging of opposition against such infidels by whatever means necessary, including force and violence. (S1 Ind. ¶ 1.) The S1 Indictment alleges that Sheikh Abdel Rahman stated publicly in 1990 that "jihad is jihad ... there is no such thing as commerce, industry and science in jihad. This is calling things ... other than by its own names. If God ... says do jihad, it means do jihad with the sword, with the cannon, with the grenades and with the missile; this is jihad. Jihad against God's enemies for God's cause and His word." (S1 Ind. ¶ 2.)

Sheikh Abdel Rahman allegedly supported and advocated jihad to, among other things: (1) overthrow the Egyptian government and replace it with an Islamic state; (2) destroy the nation of Israel and give the land to the Palestinians; and (3) oppose those governments, nations, institutions, and individuals, including the United States and its citizens, whom he perceived as enemies of Islam and supporters of Egypt and Israel. (S1 Ind. ¶ 3.)

Sheikh Abdel Rahman allegedly endorsed terrorism to accomplish his goals. The S1 Indictment alleges that Sheikh Abdel Rahman stated in a speech given prior to May 2, 1994:

Why do we fear the word "terrorist"? If the terrorist is the person who defends his right, so we are terrorists. And if the terrorist is the one who struggles for the sake of God, then we are terrorists. We ... have been ordered with terrorism because we must prepare what power we can to terrorize the enemy of God and yours. The Quran [the Islamic holy book] mentioned the word "to strike terror," therefore we don't fear to be described with "terrorism".... They may say "he is a terrorist, he uses violence, he uses force." Let them say that. We are ordered to prepare whatever we can of power to terrorize the enemies of Islam.

(S1 Ind. ¶ 4.) Sheikh Abdel Rahman allegedly exercised leadership while subordinates carried out the details of specific terrorist operations. (S1 Ind. ¶ 5.) He was allegedly viewed by his followers and associates as a religious scholar, and he allegedly provided necessary guidance regarding whether particular terrorist activities were permissible or forbidden under his extremist interpretation of Islamic law, and at times provided strategic advice concerning whether such activities would be an effective means of achieving their goals. (S1 Ind. ¶ 5.) The S1 Indictment alleges that Sheikh Abdel Rahman also solicited persons to commit violent terrorist actions, and that he served as a mediator of disputes among his followers and associates. (S1 Ind. ¶ 5).

On or about July 2, 1993, Sheikh Abdel Rahman was arrested in the United States. (S1 Ind. ¶ 6.) In October 1995, Sheikh Abdel Rahman was convicted 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 other

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New York City landmarks. (S1 Ind. ¶ 6.) He was also found guilty of soliciting crimes of violence against the United States military and Egyptian president Hosni Mubarak. (S1 Ind. ¶ 6.) In 1996 Sheikh Abdel Rahman was sentenced to life imprisonment. (S1 Ind. ¶ 6.) His conviction was affirmed on appeal, and became final on January 10, 2000 when the United States Supreme Court refused to hear his case. (S1 Ind. ¶ 6.)

The S1 Indictment alleges that both prior to and after his arrest and imprisonment, Sheikh Abdel Rahman was a spiritual leader of an international terrorist group based in Egypt and known as 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" ("Islamic Group"). (S1 Ind. ¶ 8.) Sheikh Abdel Rahman allegedly played a key role in defining and articulating the goals, policies, and tactics of the Islamic Group. (S1 Ind. ¶ 8.)

Since in or about 1997, Sheikh Abdel Rahman has been incarcerated in various facilities operated by the United States Bureau of Prisons, including the Federal Medical Center in Rochester, Minnesota. (S1 Ind. ¶ 6.) The S1 Indictment alleges that, following his arrest, Sheikh Abdel Rahman urged his followers to wage jihad to obtain his release from custody. (S1 Ind. ¶ 7.) Sheikh Abdel Rahman's followers, including those associated with the Islamic Group, allegedly shared his views about the reasons for jihad, including the goal of obtaining Sheikh Abdel Rahman's release from United States custody. (S1 Ind. ¶ 10.)

The S1 Indictment charges that, after Sheikh Abdel Rahman's arrest, a coalition of alleged terrorists, supporters, and followers, including leaders and associates of the Islamic Group, al Qaeda, the Egyptian Islamic Jihad, and the Abu Sayyaf terrorist group...

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