446 F.3d 915 (9th Cir. 2006), 02-50355, United States v. Afshari

Docket Nº:02-50355.
Citation:446 F.3d 915
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Hossein AFSHARI, aka Hosseini Deklami; Mohammad Omidvar; Hassan Rezaie; Roya Rahmani, aka Sister Tahmineh; Navid Taj, aka Najaf Eshkoftegi; Mustafaorder and Ahmady; Alireza Mohamadamended Moradi, Order, Defendants-Appellees.
Case Date:April 17, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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446 F.3d 915 (9th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellant,

v.

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

No. 02-50355.

United States Court of Appeals, Ninth Circuit.

April 17, 2006

Amended April 28, 2006.

Becky S. Walker, Esq., USLA--Office of the U.S. Attorney, Criminal Division, Los Angeles, CA, Yoel Tobin, Esq., Douglas N. Letter, Esq., DOJ--U.S. Department of Justice, Civil Division/Appellate Staff, Washington, DC, for Plaintiff-Appellant.

Nadine C. Hettle, Esq., FPDCA--Federal Public Defender's Office, Anthony Pacheco, Proskauer Rose LLP, Sam S. Puathasnanon, Esq., Manatt Phelps & Phillips, LLP, David R. Reed, Esq., Law Office of David R. Reed, Los Angeles, CA, Michael J. Treman, Attorney at Law, Santa Barbara, CA, Yolanda M. Barrera, Esq., Monrovia, CA, Stephen P. Berzon, Esq., Altshuler, Berzon, Nussbaum, Rubin & Demain, San Francisco, CA, David R. Evans, Esq., Pasadena, CA, for Defendants-Appellees.

Before ANDREW J. KLEINFELD, KIM McLANE WARDLAW, and WILLIAM A. FLETCHER, Circuit Judges.

ORDER

The order filed April 17, 2006, denying the petition for rehearing and petition for rehearing en banc is amended as follows:

After the sentence, "The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration," insert the following sentence: "Judge Fisher and Judge Berzon were recused from all proceedings in this case."

ORDER

The panel has voted unanimously to deny the petition for rehearing and petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Judge Fisher and Judge Berzon were recused from all proceedings in this case. Fed. R.App. P. 35(b).

The petition for rehearing and the petition for rehearing en banc are DENIED.

KOZINSKI, Circuit Judge, with whom Judges PREGERSON, REINHARDT, THOMAS and PAEZ join, dissenting from denial of rehearing en banc.

It goes without saying that the United States government may prohibit donations to terrorist organizations. As we explained in Humanitarian Law Project v. Reno, 205 F.3d 1130, 1133 (9th Cir.2000), money is fungible; if an organization engages in terrorism, it can channel money donated to it for humanitarian and advocacy purposes to promote its grisly agenda. At the same time, however, giving money to a political organization that is not engaged in terrorist activities is constitutionally

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protected. The determination of whether or not an organization is engaged in terrorism is therefore crucial, because it distinguishes activities that can be criminalized from those that are protected by the First Amendment.

This case concerns the manner in which this distinction is drawn. Because designating an organization as terrorist cuts off the First Amendment rights of individuals wishing to donate to that organization, the designation must meet certain constitutional standards. The Supreme Court has twice spoken to the question of how the government may go about turning what would otherwise be protected First Amendment speech into criminal conduct, the first time in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), and the second time in McKinney v. Alabama, 424 U.S. 669, 96 S.Ct. 1189, 47 L.Ed.2d 387 (1976). In both cases, the Court laid out strict rules that the government must follow, yet the designation in this case complies neither with Freedman nor with McKinney. The net result is that Rahmani is being criminally prosecuted, and almost certainly will be convicted, for contributing to an organization that has been designated as terrorist with none of the protections that are constitutionally required for such a designation. Worse, Rahmani will in all likelihood spend many years in prison for contributing to an organization whose designation the D.C. Circuit has held does not even meet the requirements of due process. Because I believe that the prosecution in this case runs contrary to two of our defining traditions--that of free and open expression, and that of justice and fair play--I respectfully dissent from the court's failure to correct the panel's errors by taking this case en banc.

Background

Anyone who "knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so" faces up to 10 years in prison. 18 U.S.C. § 2339B(a)(1). 1 A foreign "terrorist organization" is defined as any organization so designated by the Secretary of State under 8 U.S.C. § 1189(a)(1). 2

Roya Rahmani was indicted under 18 U.S.C. § 2339B for making monetary contributions to the Mujahedin-e-Khalq (MEK), also known as the People's Mojahedin Organization for Iran, between 1997 and 2001. See United States v. Rahmani, sub nom. United States v. Afshari, 426 F.3d 1150, 1152 (9th Cir.2005). MEK is opposed to the current fundamentalist regime in Iran. See People's Mojahedin Org. of Iran v. Dep't of State, 182 F.3d 17, 20-21 (D.C.Cir.1999) (" PMOI I "). It was first designated a terrorist organization in 1997, and was re-designated in 1999 and 2001. See id. at 18; Nat'l Council of Resistance of Iran v. Dep't of State, 251 F.3d 192, 197 (D.C.Cir.2001) (" PMOI II "); People's Mojahedin Org. of Iran v. Dep't of State, 327 F.3d 1238, 1241 (D.C.Cir.2003) (" PMOI III "); cf. 8 U.S.C. § 1189(a)(4) (requiring re-designation every two years).

Rahmani argues that MEK is not a terrorist organization, but the crime isn't defined as providing support to an organization that is terrorist, only to one that is designated as such under 8 U.S.C. § 1189. Further, she is statutorily barred from

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arguing that the organization is not terrorist in nature, and therefore that her contribution is constitutionally protected. See 8 U.S.C. § 1189(a)(8). Not to worry, says the panel; the organization itself can challenge the designation, so Rahmani's First Amendment rights are adequately protected.

The organization's challenges in this case, however, proved futile. MEK brought a legal challenge each time it was designated, under the judicial review provision of the governing statute: "The [D.C. Circuit] Court shall hold unlawful and set aside a designation the court finds to be ... contrary to constitutional right, power, privilege, or immunity." 8 U.S.C. § 1189(b)(3)(B). When the D.C. Circuit reviewed MEK's 1997 designation, however, it found the organization lacked due process rights and thus could not challenge the designation. See PMOI I, 182 F.3d at 22, 25. When MEK was re-designated in 1999 and challenged its new designation, the D.C. Circuit reached the merits 3 and found that the designation violated due process because the government did not provide MEK with notice or an opportunity to be heard. See PMOI II, 251 F.3d at 196, 208-09. But, instead of setting the designation aside as the statute requires, see 8 U.S.C. § 1189(b)(3)(B), the court left the designation in place and remanded the case to the Secretary of State for further proceedings, see PMOI II, 251 F.3d at 209. On remand, the Secretary...

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