United States v. Kassar

• Decision Date: 14 October 2008
• Docket Number: No. S3 07 CR 354(JSR).,S3 07 CR 354(JSR).
• Citation: 582 F.Supp.2d 488
• Parties: UNITED STATES of America v. Monzer AL KASSAR, Tareq Mousa Al Ghazi, and Luis Felipe Moreno Godoy, Defendants.
• Court: U.S. District Court — Southern District of New York

582 F.Supp.2d 488

UNITED STATES of America v. Monzer AL KASSAR, Tareq Mousa Al Ghazi, and Luis Felipe Moreno Godoy, Defendants.

No. S3 07 CR 354(JSR).

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

October 14, 2008.

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Leslie C. Brown, United States Attorney, Southern District New York, Brendan Robert McGuire, U.S. Attorney's Office, New York, NY, for Plaintiff.

Ira Lee Sorkin, Elliott Zvi Stein, Nicole Pappas de Bello, Shirley Othmana Saed, Dickstein Shapiro LLP, Roger Lee Stavis, Gallet Dreyer & Berkey LLP, New York, NY, Marc Anthony Agnifilo, Brafman & Associates, P.C., New York, NY, for Defendants.

MEMORANDUM

JED S. RAKOFF, District Judge.

After the defendants in this case moved to dismiss the Indictment, the Court, by Order dated September 5, 2008, denied defendants' motions in all respects. This Memorandum explains the reasons for that Order.¹

The five-count Indictment in this case charges that, between February 2006 and May 2007, defendants Monzer Al Kassar, Tareq Mousa Al Ghazi, and Luis Felipe Moreno Godoy conspired to provide Fuerzas Armadas Revolucionarias de Colombia ("FARC"), an international terrorist group, with millions of dollars worth of weapons to be used to kill United States nationals in Colombia. Indictment ¶ 9-10. FARC is designated as a foreign terrorist organization by both the United States and the European Union and is dedicated to the violent overthrow of the democratically elected Government of Colombia. Id. ¶ 6. According to the Indictment, FARC is the world's largest supplier of cocaine, and during the last five years has directed violent acts against United States citizens in Colombia in order to protect its financial interests in the cocaine trade. Id. ¶¶ 6-7. The Indictment further charges that defendant Al Kassar has been an international weapons trafficker since the early 1970s and has been a source of weapons and military equipment for armed factions around the world, including known terrorist organizations. Id. ¶ 1. Co-defendants Al Ghazi and Godoy are alleged to have worked with Al Kassar in his weapontrafficking business for, respectively, about 30 years in Al Ghazi's case and about 10 years in Godoy's case. Id. ¶¶ 4, 5.

The specific crimes here alleged are that the defendants: (1) conspired to kill United States nationals in violation of 18 U.S.C. § 2332(b); (2) conspired to kill officers and employees of the United States in violation of 18 U.S.C. § 1117; (3) conspired to acquire and use anti-aircraft missiles in violation of 18 U.S.C. § 2332(g)(a)(1); (4) conspired to provide material support or resources to a foreign terrorist organization in violation of 18 U.S.C. § 2339B(a)(1); and (5) engaged in money laundering in violation of 18 U.S.C. § 1956(a)(3).

Defendants seek dismissal of the Indictment both in its entirety and with respect to specific counts. As to the entirety, defendants argue first, that the Government was so deeply involved in the creation of the charged violations, and that its conduct was so "outrageous," that it violated defendants' Fifth Amendment right to due process. Although "in an extreme case, Government involvement in criminal activity might be so outrageous that due process principles would absolutely bar the Government from invoking judicial processes to obtain a conviction, ... only Government conduct that shocks the conscience can violate due process." United States v. Rahman, 189 F.3d 88, 131 (2d Cir.1999) (internal citations and quotation marks omitted); see Hampton v. United States, 425 U.S. 484, 495 n. 7, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976) (Powell, J. concurring) ("police over-involvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction").

Defendants readily concede that the burden of establishing outrageous conduct is high, Rahman, 189 at 131, and that, accordingly, such claims rarely succeed. United States v. LaPorta, 46 F.3d 152, 160 (2d Cir.1994); see Memorandum of Law of Defendant Tareq Mousa Al Ghazi in Support of Motion to Dismiss the Indictment and Other Relief ("Al Ghazi Mem.") at 14. Nevertheless, defendants, in an attempt to meet this high burden, proffer through sworn affidavits that the Government, through confidential informants: (1) first approached defendants and suggested that they become involved in what was originally represented to be an entirely legal arms deal involving other weapons, Affidavit of Monzer Al Kassar sworn to on July 15, 2008 ("Al Kassar Aff.") ¶¶ 4-5; Affidavit of Defendant Tareq Mousa Al Ghazi sworn to on July 10, 2008 ("Al Ghazi Aff.") ¶¶ 3-8; Affidavit of Luis Felipe Moreno Godoy sworn to on June 10, 2008 ("Godoy Aff.") ¶¶ 5-6; (2) executed a "bait and switch" by continuing to misrepresent the nature of the arms deal until after defendants had agreed to the deal, Al Kassar Aff. ¶ 9; Al Ghazi Aff. ¶ 13; (3) only then approached defendant Al Kassar about buying surface-to-air missiles after piquing his interest in an arms deal for other weapons, see Indictment ¶¶ 11(a), (d), (s), (ee); and (4) even then, produced the end-user certificate that was critical to the deal's success, Al Kassar Aff. ¶ 5, Al Ghazi Aff. ¶¶ 8-10;

This does not begin to meet the standards of Rahman. Conscience-shocking conduct typically involves either the use of coercion, force, or some other "violation of the defendant's person." United States v. Schmidt, 105 F.3d 82, 91 (2d Cir.1997); see Rahman, 189 F.3d at 131 ("paradigm examples of conscience-shocking conduct are egregious invasions of individuals rights"). Here, defendants were not forced or coerced into agreeing to participate in the charged weapons transaction, no threats were made, no violence was used, and there is no indication that defendants agreed to participate in the transaction unwillingly.² The Government hardly can be said to have "created" the charged offenses, where, as here, the defendants are alleged to have taken active steps towards procuring and selling millions of dollars worth of illegal weapons, including surface-to-air missiles, Al Ghazi Aff. ¶ 11, providing specifications of surface-to-air missiles, Indictment ¶¶ 11(aa), organizing the logistics of transporting the missiles, Id. ¶¶ 11(cc), (hh), (rr), requesting "a significant payment" for the missiles Id. ¶ 11(qq), offering to obtain an improper end-user certificate for the missiles, Id. ¶ 11(ss), and traveling to Romania in connection with the deal, Id. ¶¶ 11(ccc)-(fff).

At most, the defendants' allegations merely indicate that the Government created "an opportunity for the commission of crime by those willing to do so," United States v. Myers, 692 F.2d 823, 837 (2d Cir.1982), investigatory conduct that is neither novel nor nefarious. See Rahman, 189 F.3d at 131 ("[u]ndercover work, in which a Government agent pretends to be engaged in criminal activity, is often necessary to detect criminal conspiracies. If such work is to succeed, the undercover agent must have `something of value to offer' the conspirators") (citation omitted). Here, the defendants' own allegations show, at most, that the Government, after gaining the defendants' confidence, invited the defendants to engage in unlawful conduct, an invitation the defendants accepted and zealously furthered. This does not remotely constitute the kind of "outrageous" conduct that implicates due process concerns.³

Defendants next argue that the Government improperly "manufactured" federal jurisdiction by misrepresenting (at least initially) the nature of the arms transaction, thus "transform[ing] a lawful weapons transaction into a global conspiracy to kill Americans in Colombia." Al Ghazi Mem. at 19. The concept of "manufactured federal jurisdiction," however, is "properly understood not as an independent defense, but as a subset of three possible defense theories: (i) the defendant was entrapped into committing a federal crime, since he was not predisposed to commit the crime in the way necessary for the crime to qualify as a federal offense; (ii) the defendant's due process rights were violated because the government's actions in inducing the defendant to commit the federal crime were outrageous; or (iii) an element of the federal statute has not been proved, so federal courts have no jurisdiction over the crime." United States v. Wallace, 85 F.3d 1063, 1065-1066 (2d Cir.1996) (internal citations omitted).

As to the first defense, while one or more defendants may seek to raise entrapment as a jury issue at trial, no entrapment has been remotely shown as a matter of law. See Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988) ("[t]he question of entrapment is generally one for the jury, rather than for the court"). As to the second defense, defendants, as already discussed, have utterly failed to meet their heavy burden of establishing outrageous conduct. As to the third defense (that the Government has failed to prove an element of a federal statute), the Second Circuit has refused to dismiss indictments "when there is any link between the federal element and a voluntary, affirmative act of the defendant. Thus, when confronted with situations in which (i) the [Government] introduces a federal element into a non-federal crime and (ii) the defendant then takes voluntary actions that implicate the federal element, ... federal jurisdiction has not been improperly manufactured." Id. at 1066 (internal quotation marks omitted); see LaPorta, 46 F.3d at 154 (rejecting claim of manufactured jurisdiction where "defendants themselves committed the substantial jurisdictional act of burning the government [car]") (citation and internal quotation marks omitted); United States v. Lau Tung Lam, 714 F.2d 209, 211 (2d Cir.1983) (rejecting claim of manufactured jurisdiction where defendant "himself committed the substantial jurisdictional act of bringing drugs into the United States").

Here, as already noted,...