426 F.3d 1150 (9th Cir. 2005), 02-50355, United States v. Afshari

Docket Nº:02-50355.
Citation:426 F.3d 1150
Party Name:UNITED STATES of America, Plaintiff-Appellant, American Civil Liberties Union of Northern California Inc; the National Association of Criminal Defense Lawyers; and California Attorneys for Criminal Justice, Intervenors, v. Hossein AFSHARI, aka Hosseini Deklami; Mohammad Omidvar; Hassan Rezaie; Roya Rahmani, aka Sister Tahmineh; Navid Taj, aka Najaf
Case Date:October 20, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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426 F.3d 1150 (9th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellant,

American Civil Liberties Union of Northern California Inc; the National Association of Criminal Defense Lawyers; and California Attorneys for Criminal Justice, Intervenors,


Hossein AFSHARI, aka Hosseini Deklami; Mohammad Omidvar; Hassan Rezaie; Roya Rahmani, aka Sister Tahmineh; Navid Taj, aka Najaf Eshkoftegi; Mustafa Ahmady; Alireza Mohamad Moradi, Defendants-Appellees.

No. 02-50355.

United States Court of Appeals, Ninth Circuit.

October 20, 2005

Argued and Submitted September 9, 2003—Pasadena, California

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[Copyrighted Material Omitted]

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Douglas N. Letter, U.S. Department of Justice, Washington, D.C., for the appellant.

Stephen P. Berzon, Altshuler, Berzon, Nussbaum, Rubin & Demain, San Francisco, California, for the appellees.

Appeal from the United States District Court for the Central District of California, D.C. No. CR-01-00209-RMT, Robert M. Takasugi, District Judge, Presiding D.C. No. CR-01-00209-RMT.

Before: Andrew J. Kleinfeld, Kim McLane Wardlaw, and William A. Fletcher, Circuit Judges.


KLEINFELD, Circuit Judge:

We review the constitutionality of a statute prohibiting financial support to organizations designated as "terrorist."


The issue here is the constitutionality of the crime charged in the indictment, that from 1997 to 2001, Rahmani and others knowingly and willfully conspired to provide material support to the Mujahedine Khalq ("MEK"), 1 a designated terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1).2

According to the indictment, the defendants solicited charitable contributions at the Los Angeles International Airport for the "Committee for Human Rights," gave money and credit cards to the MEK, and wired money from the "Committee for Human Rights" to an MEK bank account in Turkey. They did all this after participating in a conference call with an MEK leader, in which they learned that the State Department had designated the MEK as a foreign terrorist organization. The MEK leader told them to continue to provide material support despite the designation. According to the indictment in this case, the money they sent to the MEK amounted to at least several hundred thousand dollars.

The MEK was founded in the 1960's as an Iranian Marxist group seeking to overthrow the regime then ruling Iran. It participated in various terrorist activities against the Iranian regime and against the United States, including the taking of American embassy personnel as hostages in 1979. After the Iranian regime fell and was replaced by a clerical, rather than a Marxist, regime, MEK members fled to France. They later settled in Iraq, along the Iranian border. There they carried out terrorist activities with the support of Saddam Hussein's regime, 3 as well as, if

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the indictment is correct, the money that the defendants sent them.

The MEK, since first being designated a terrorist organization, has developed a convoluted litigation history in the United States Court of Appeals for the District of Columbia. Because this history is important to the outcome of this case, we will briefly review the relevant parts.

The MEK was first designated a terrorist organization in 1997. The D.C. Circuit upheld this designation because the MEK was a "foreign entity without . . . presence in this country" and thus "ha[d] no constitutional rights under the due process clause."4 Therefore, the MEK was not entitled to notice and a hearing. It also found the administrative record sufficient to establish that the MEK "engages in terrorist activity."5 In the process of designating MEK a terrorist organization in 1999, the State Department determined that another organization, the National Council of Resistance of Iran, was an "alias" of the MEK.6 When reviewing the 1999 designation, the D.C. Circuit held that the second organization had a presence in the United States and, based on that presence, that both organizations were entitled to "the opportunity to be heard at a meaningful time and in a meaningful manner."7

The D.C. Circuit remanded the 1999 designation to the State Department with the instructions that both organizations be given an opportunity "to file evidence in support of their allegations that they are not terrorist organizations."8 Instead, the MEK submitted evidence showing that it was responsible for numerous assassinations of Iranian officials and mortar attacks on Iranian government installations.9 Upon reviewing this redesignation, the D.C. Circuit noted that any procedural due process error that might have existed was harmless because the MEK had "effectively admitted" that it was a terrorist organization.10

For purposes of reviewing a motion to dismiss an indictment, we assume the truth of what the indictment alleges.11Thus, we take it as true that the defendants knew that they were furnishing assistance to a designated "terrorist" organization, having been informed of the designation in a conference call with an MEK leader.

The district court dismissed the indictment on the ground that the terrorist designation statute12 was unconstitutional. We review de novo, 13 and reverse.


I. Challenging the designation.

8 U.S.C. § 1189(a)(1) sets out a carefully articulated scheme for designating foreign terrorist organizations. To make the designation, the Secretary has to make specific findings that "the organization is a foreign organization"; that "the organization engages in terrorist activity (as defined

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in 8 U.S.C. § 1182(a)(3)(B))"; and that "the terrorist activity of the organization threatens the security of United States nationals or the national security of the United States."14

The Secretary of State's designation is only the beginning. The Secretary also must furnish the congressional leadership advance notification of the designation and the factual basis for it, which Congress can reject.15 The designation is published in the Federal Register.16 The designated organization is entitled to judicial review of the Secretary's action in the United States Court of Appeals for the District of Columbia.17That court is directed to set aside the designation for the ordinary administrative law reasons, such as that the designation is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."18 That court must also set aside a designation for several other reasons, including that the designation is "contrary to constitutional right, power, privilege, or immunity."19 Congress or the Secretary can revoke a designation.20 Among the concrete incentives that a designated organization has to contest the designation is that the Secretary of the Treasury may require American financial institutions to block all financial transactions involving its assets.21

The district court found that it was a facially unconstitutional restriction on judicial review of the designation for Congress to assign such review exclusively to the D.C. Circuit. We reject that position.

Many administrative determinations are reviewable only by petition to the correct circuit court, bypassing the district court, and that procedure has generally been accepted.22Many are reviewable only in the D.C. Circuit, or the Federal Circuit, and those restrictions have also been generally

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accepted.23 The congressional restriction does not interfere with the opportunity for judicial review, as the MEK's extensive litigation history shows. And this scheme avoids the awkwardness of criminalizing material support for a designated organization in some circuits but not others, as varying decisions in the different regional circuits might.

However, a holding that a restriction of judicial review of the Secretary of State's designation of a terrorist organization to the Court of Appeals for the D.C. Circuit is not facially unconstitutional does not settle the question whether a defendant may be criminally prosecuted for donating to a designated organization. A defendant prosecuted in district court for donating to such an organization may bring a due process challenge to his or her prosecution in the district court. The district court properly ruled that it had jurisdiction to review this challenge. But its conclusion that § 1189 is facially unconstitutional, because judicial review of the terrorist designation was assigned exclusively to the D.C. Circuit, was in error.

II. Due Process claim.

The statute assigns criminal penalties to one who "knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so."24 The statutory phrase "terrorist organization" is a term of art, defined by Congress as "an organization designated as a terrorist organization" under 8 U.S.C. § 1189(a)(1).25 The defendants' central argument is that § 2339B denies them their constitutional rights because it prohibits them from collaterally attacking the designation of a foreign terrorist organization. This contention was recently rejected by the Fourth Circuit en banc.26 We, too, reject it.

The specific section that is at issue here is 8 U.S.C. § 1189(a)(8), which states in relevant part:

If a designation . . . has become effective . . . a defendant in a criminal action or an alien in a removal proceeding shall not be permitted to raise any question concerning the validity of the issuance of such designation or redesignation as a defense or an objection at any trial or hearing.

The defendants are right that § 1189(a)(8) prevents them from contending, in defense of the charges against them under 18 U.S.C. § 2339B, that the designated terrorist organization is not really...

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