Elshinawy v. United States

Decision Date14 October 2021
Docket NumberCivil ELH-20-3163,CRIMINAL ELH 16-009
CourtU.S. District Court — District of Maryland

Ellen L. Hollander United States District Judge

Petitioner Mohamed Elshinawy, who is now self-represented, has filed a post-conviction petition under 28 U.S.C. § 2255. ECF 237 (the “Petition”). He challenges his convictions for conspiracy to provide and providing material support, in the form of personnel, services (including means and methods of communication), and financial services to ISIS, a designated foreign terrorist organization, in violation of 18 U.S.C. §§ 2339B(a)(1) and 2339B(d)(1)(A), (D), (E) and (F)[1]; unlawful financing of terrorism, under 18 U.S.C. § 2339C(a); and false statements to the Federal Bureau of Investigation (“FBI”), in violation of 18 U.S.C. § 1001(a)(2). Id. The convictions followed Elshinawy's entry of a guilty plea to those charges on August 15, 2017. ECF 119; see also ECF 19 (Indictment); ECF 120 (Plea Agreement). On April 2, 2018 defendant was sentenced to a total term of imprisonment of 240 months (20 years). ECF 244 (Judgment).

The Petition asserts eight claims, six of which are grounded in allegations of ineffective assistance of counsel. See ECF 273. In the remaining two claims, Elshinawy maintains that his statements throughout the case were involuntary because he feared law enforcement as well as his own counsel, and that his constitutional rights were violated because the Court allowed defendant's religion to be used as evidence of bad character. Id. at 7, 25. Several exhibits are appended to the Petition.

The government opposes Elshinawy's Petition. ECF 283. It contends, among other things, that several of defendant's claims could have been raised on direct appeal, rendering them procedurally defaulted. Further, the government contends that all of the claims are without merit. See Id. Elshinawy has replied. ECF 285.

Petitioner has also filed a “Motion to request Different Judge to evaluate the Defendant's habeas claim to avoid Conflict of Interest.” ECF 275 (“Motion”). There, he expresses concern as to the judge's ability to “rul[e] about her own fairness regarding the defendant's court procedures.” Id. The government opposes the motion. ECF 283 at 30-31.[2]

No hearing is necessary to resolve the Petition or the Motion. For the reasons that follow, I shall deny the Motion and the Petition.

I. Factual and Procedural Background[3]

Elshinawy is a United States citizen of Egyptian descent. ECF 126 (Presentence Report or “PSR”) at 2. He was born in Pittsburgh, while his father was engaged in medical training. However, defendant's parents are not United States citizens, and the family returned to Egypt when defendant was an infant. See ECF 234 at 20. Defendant spent a good portion of his life in Egypt and Saudia Arabia, raised by well educated parents: his father is a retired physician and his mother is a professor of statistics. ECF 126, ¶ 40; ECF 234 at 20. Defendant, too, is college educated. ECF 126 at 2.

In or about 2007, Elshinawy began to travel frequently between Egypt and the United States. On December 11, 2015, he was arrested in Maryland. ECF 6 (Arrest Warrant). About one month later, on January 13, 2016, the defendant was indicted. ECF 19.

The Indictment contained four counts. In particular, defendant was charged with conspiracy to provide (Count One) and providing (Count Two) material support to ISIS, a designated foreign terrorist organization, in the form of personnel, services, and financial services, in violation of 18 U.S.C. §§ 2339B(a)(1) and 2339B(d)(1)(A), (D), (E), and (F); unlawful financing of terrorism, in violation of 18 U.S.C. §§ 2339C(a)(1)(B) and 2339C(a)(3) (Count Three); and making false statements to the FBI regarding his ISIS-related activities, in violation of 18 U.S.C. § 1001(a)(2) (Count Four). Id.

On August 15, 2017, pursuant to a Plea Agreement (ECF 120), Elshinawy entered a plea of guilty to all charges. ECF 119. The Plea Agreement included a “Stipulated Statement of Facts, ” designated as Attachment A. ECF 120 at 9-11 (Stipulation).

In the Stipulation, Petitioner admitted that he knowingly and intentionally conspired with others to provide material support or resources to ISIS (Count One); that he knowingly provided and attempted to provide material support or resources to ISIS (Count Two); that he willfully collected funds, directly or indirectly, with the knowledge that such funds were to be used, in whole or in part, to carry out a terrorist attack intended to cause death or serious bodily injury to civilians (Count Three); and he knowingly and willfully made false statements to agents of the FBI with respect to a terrorism investigation (Count Four). Id.

The Stipulation reflects Petitioner's discussions in September and October of 2014 with “Individual # 1, ” his childhood friend and a self-described member of ISIS, who resided in ISIS-controlled territories. Id. at 9. In these conversations, Petitioner expressed “his support for an Islamic caliphate, his belief in the legitimacy of ISIS” and its leader, Abu Bakr al-Baghdadi, his “hope that ISIS would be victorious and its enemies defeated, and readiness to travel” with his wife to Syria, through Turkey, in order “to live in the Islamic State . . . .” Id.

Further, on February 17, 2015, in a social media conversation with Individual #1, Elshinawy “pledged his allegiance” to ISIS, “described himself as its soldier, committed himself to committing jihad, and asked Individual # 1 to convey his message of loyalty to ISIS leadership.” Id. Defendant also agreed not to discuss his potential plans for a terrorist attack, recognizing “that such an attack would be a crime in the United States.” Id.

Specifically, Individual # 1 stated: “You are at a vulnerable point; through you, brother, we can either be defeated or victorious . . . you are now different than before . . . and don't tell anyone what you have in mind.” ECF 139-9 at 68-69 (social media chat translations). Elshinawy responded, “Of course not. It is a crime here. A very big one. If I meet our Lord while being, at least faithful to Muslims, I may have hope for mercy.” Id. at 70. In April 2015, Elshinawy told Individual # 1, “Soon, you'll hear good news, Allah willing.” Id. at 123. Individual # 1 told Elshinawy: “Be harsh in the killing of Allah's enemies.” Id. at 134. And, Elshinawy responded, “Victory is patience for an hour[.] Allah willing.” Id. at 135.

From March through June 2015, Elshinawy discussed “his preparedness for jihad, his efforts at undertaking extreme security measures . . . and his ISIS-related activities . . . .” ECF 120 at 9. He also “expressed his indebtedness to Individual #1 for showing him the way to martyrdom, reiterating his commitment to ISIS and its cause.” Id. He also asked for information about how to make an explosive device and a silencer. Id. And, he discussed steps he had taken to conceal his activities. Id.

Beginning in March 2015, Petitioner received money transfers from a foreign entity based in Wales, United Kingdom, and Dhaka, Bangladesh (the “UK Company”). Id. The funds were “to be used to fund a terrorist attack in the United States.” Id. at 10. The UK Company provided IT-related products and services, and the owner, Individual #2, was a national of Bangladesh who had joined ISIS in 2014 and assisted in the development of weaponized drone technology. Id. at 10. Individuals #3 and #4, who were associated with the UK Company, helped to send monies to defendant and to purchase components of drone technology for Individual #2. Id.[4]

Elshinawy received most of the money through transfers from an account associated with the UK Company, deposited into an online financial account, The Cheap Mart, LLC, a business name defendant had registered in Maryland, as well as through his wife's account. Id. The transfer to his wife's account was “disguised” as the purchase of printers. Id. By utilizing the UK Company's name and business accounts, members of the conspiracy were able to conceal the true nature of their ISIS-related transactions. In total, from March to June 2015, Elshinawy received $8, 700.00 from participants in the conspiracy, “to be used to conduct a terrorist attack in the United States.” Id.

Petitioner and his coconspirators also engaged in “various activities to facilitate their efforts on behalf of ISIS and its cause.” Id. This included registering devices and accounts with alias names and phony addresses. Id.

Defendant also stipulated that he attempted to recruit his brother, Ahmed Elshinawy, to join ISIS. Id. at 11. Elshinawy told Ahmed: “My life is for Allah. If I die for the sake of Allah, then there is no problem.” ECF 139-9 at 25. He explained to his brother how he had received money from ISIS and would be receiving more in the future. ECF 120 at 11. And he explained that he had “plans” in the United States, for which he intended to remain in this country temporarily, he was “taking steps” to avoid detection, and he had a “desire” to “wage violent Jihad and die as a martyr.” Id. He also told his brother that [k]illing the apostates is allowed.” ECF 139-9 at 414.

In July 2015, FBI agents interviewed Petitioner. ECF 120 at 11. In the first of several interviews, Elshinawy admitted that he received money from ISIS to be used to conduct a terrorist attack in the United States. ECF 138-10 at 6 (FBI Form 302). But, Elshinawy provided false information about the amount of money he had received and “falsely claimed” that he took the money with the “intent . . . to defraud ISIS of funds.” ECF 120 at 11. Elshinawy also minimized the “true nature and extent of his...

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