U.S. v. Abdi

• Decision Date: 26 July 2007
• Docket Number: No. 2:04-CR-88.,2:04-CR-88.
• Citation: 498 F.Supp.2d 1048
• Parties: UNITED STATES of America, Plaintiff, v. Nuradin ABDI, Defendant.
• Court: U.S. District Court — Southern District of Ohio

498 F.Supp.2d 1048

UNITED STATES of America, Plaintiff, v. Nuradin ABDI, Defendant.

No. 2:04-CR-88.

United States District Court, S.D. Ohio, Eastern Division.

July 26, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mahir T. Sherif, Law Office of Mahir T. Sherif, San Diego, CA, for Defendant.

Dana Martin Peters, United States Attorney's Office, Columbus, OH, Sylvia T. Kaser, U.S. Department of Justice, Chief, Special Litigation Section, Washington, DC, for Defendant.

OPINION AND ORDER

MARBLEY, District Judge.

I. INTRODUCTION

This matter is before this Court on numerous pretrial motions filed by Defendant Nuradin Abdi ("Defendant") and the Government. This Court conducted an oral hearing on several of these motions on July 6, 2007, and based on those arguments and those set forth in memoranda submitted to this Court, this Court rules as set forth below.

II. BACKGROUND

On June 10, 2004, a Grand Jury returned a four-count indictment against Defendant Nuradin Abdi. Count One alleges that from late 1997 until November 2003, Defendant, in violation of 18 U.S.C. § 2339A and 18 U.S.C. § 371, conspired to provide material support to terrorists with the knowledge or intent that his support would be used to carry out a violation of 18 U.S.C. § 956, which prohibits conspiracy to kill, kidnap, maim, and injure persons or property in a foreign country. Count Two alleges that from late 1997 or early 1998 until November 2003, Defendant, in violation of 18 U.S.C. § 2339B, conspired knowingly to provide material support to al Qaeda, a designated Foreign Terrorist Organization ("FTO").

The overt act alleged in furtherance of Counts One and Two charges that Defendant on April 27, 1999, applied for a travel document from Immigration and Naturalization Service ("INS") and concealed his true destination by claiming that he would be visiting Germany and Saudi Arabia but, instead, intending to travel to Ogaden, Ethiopia for military-style training in preparation for a violent Jihad.

Counts Three and Four both allege violations of 18 U.S.C. § 1546(a), which prohibits, inter alia, fraud or misuse of immigration documents. Specifically, Count Three alleges that on June 11, 1999, Defendant knowingly possessed, obtained, and received a false Refugee Travel Document because the Travel Document had been granted on the basis of a falsified asylum application. Count Four alleges that on March 25, 2000, Defendant knowingly used a false Refugee Travel Document. The Indictment further charges that Defendant committed the offenses charged in Counts Three and Four in order to facilitate an act of international terrorism.

III. ANALYSIS

A. Defendant's Motion to Dismiss for Prejudicial Pre-Indictment Delay [Doc. 44]¹

Defendant moves this Court for an order dismissing the Indictment based on prejudicial delay between the time of the alleged events and the time of the return of the Indictment. Defendant states that the offenses in Counts One and Two of the Indictment are activities that allegedly occurred between "late 1997 to November 2003" and the overt act stated for both Counts allegedly occurred on April 27, 1999. Further, the offenses in Counts Three and Four are activities that allegedly occurred on June 11, 1999 and March 25, 2000, respectively. Defendant claims that his Fifth Amendment right to a fair trial as been substantially prejudiced by the delay between these events and the issuance of the Indictment, which was returned on June 10, 2004. Specifically, Defendant claims that the delay has allowed the Government to gain a tactical advantage over Defendant because the delay may affect the availability of witnesses and records.

In response, the Government contends that it did not learn of Defendant's criminal activities beginning in 1997 until the spring of 2003, and, therefore, the Government could not possibly have charged Defendant with any offense prior to that day. Additionally, the Government states that the period between the date of Defendant's arrest on November 28, 2003 and the June 10, 2004 indictment was not for purposes of delay, but rather necessary for an adequate investigation.²

Although the statute of limitations is the primary protection against stale prosecutions "the Due Process Clause has a limited role in protecting against oppressive delay." United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). To obtain relief under the Due Process Clause, "the defendant [must] prove that the government's delay in bringing the indictment was a deliberate device to gain an advantage over [the defendant] and that [the delay] caused him actual prejudice in presenting his defense." United States v. Gouveia, 467 U.S. 180, 192, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984); see also United States v. Rogers, 118 F.3d 466, 475 (6th Cir.1997) (requiring defendant to prove both actual substantial prejudice and intentional delay on the part of the government). A delay resulting from investigative efforts "does not deprive [a defendant] of due process, even if his defense may have been somewhat prejudiced by the lapse of time." Rogers, 118 F.3d at 476 (quoting United States v. Atisha, 804 F.2d 920, 928 (6th Cir.1986)); see also United States v. DeClue, 899 F.2d 1465, 1468-69 (6th Cir.1990) (holding that a due process claim of excessive pre-indictment delay will fail unless the petitioner can show that the government had no valid reason for the de Lay or that some tactical advantage was sought to be obtained by the delay).

In this case, Defendant fails to demonstrate that the Government's delay was used as a deliberate device to gain an advantage, or that the delay caused substantial prejudice to Defendant's case. While Defendant's alleged criminal acts occurred up to seven years before the return of the Indictment, little more than a year passed from the time the Government had reason to know of Defendant's criminal actions to the time of the Indictment. The one-year delay was for legitimate investigatory reasons — reasons sufficient to avoid dismissal. See United States v. Solomon, 688 F.2d 1171, 1179 (7th Cir.1982) (holding that an investigatory delay of three and one-half years due to IRS investigation was legitimate). Defendant has set forth no factual basis to support a claim that the delay was deliberate in order to gain a tactical advantage; he has simply asserted that the delay was intentional. Mere allegations are insufficient to meet a defendant's burden of showing deliberate delay. United States v. Royals, 777 F.2d 1089 (5th Cir.1985). Most, if not all, of Defendant's complaints are traceable to the time between his alleged crimes and when the Government became aware of them. In other words, the delay is attributable to the success of Defendant's alleged covert conspiracy. A defendant cannot elude prosecution for years and later use his own alleged successful evasive conduct to support a claim of pre-indictment delay.

Further, Defendant has failed to put forth evidence of actual "substantial prejudice." Defendant argues that because of the passage of time between his alleged acts and the Indictment, witnesses will be difficult to locate, their recollections may be poor, and certain records may no longer be available. These are general arguments, however, and Defendant fails to set forth specific grounds for his claim. Defendant notes his burden to prove actual prejudice and states that he will supplement his Motion with specific instances of such; this Court, however, has never received any supplement.

For the foregoing reasons, Defendant's Motion is DENIED.

B. Defendant's Substantive Motions to Dismiss

Defendant filed the following motions to dismiss based on the substantive charges in the Indictment:

• Defendant's [First] Motion to Dismiss Count One, Count Two, Count Three and Count Four of the Indictment for Insufficiency [Doc. 50]; • Defendant's [Second] Motion to Dismiss Count Two for Failure to State an Offense [Doc. 95];

• Defendant's Second Motion to Dismiss Count One [Doc. 144];

• Defendant's Third Motion to Dismiss Count Two [Doc. 145];

• Defendant's Second Motion to Dismiss Counts Three and Four [Doc. 146]

Because many of the issues overlap, and Defendant often restates the same arguments, this Court addresses the Motions together by reviewing each Count and the related challenges asserted by Defendant.

1. Count One: Conspiracy to Provide Material Support to Terrorists

Count One charges as follows:

1. From in or about late 1997 to on or about November 27, 2003, the defendant, Nuradin M. Abdi, in the Southern District of Ohio and elsewhere, did knowingly and willfully combine, conspire, confederate, and agree with other persons, known and unknown to the Grand Jury, to violate Title 18, United States Code, Section 2339A.

2. It was a part and object of the conspiracy that the defendant, Nuradin M. Abdi, and other persons known and unknown to the Grand Jury, would and did, within the United States, provide material support and resources and conceal and disguise the nature, location, source, and ownership of material support and resources, knowing and intending that they were to be used in preparation for, and in carrying out, a violation of Section 956 of Title 18, United States Code (conspiring to kill, kidnap, maim, and injure persons and to damage and destroy property in a foreign country), and in preparation for, and in carrying out, the concealment and an escape from the commission of such violation.

3. [Over Act:] In furtherance of the conspiracy and to effect the illegal objects thereof, the following Overt Act, and others, was committed by the defendant:

On April 27, 1999, the defendant, Nuradin M. Abdi, applied to the Immigration and Naturalization Service (currently known as the Department of Homeland Security, Bureau of Immigration and Customs Enforcement) ("INS") for a travel document, wherein he concealed his destination by representing that he...