U.S. v. Al-Arian, 8:03-CR-77-T-30TBM.

• Court: United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
• Citation: 308 F.Supp.2d 1322
• Docket Number: No. 8:03-CR-77-T-30TBM.,8:03-CR-77-T-30TBM.
• Parties: UNITED STATES of America v. Sami Amin AL-ARIAN Sameeh Hammoudeh Ghassan Zayed Ballut Hatim Naji Fariz
• Decision Date: 12 March 2004

308 F.Supp.2d 1322 UNITED STATES of America
v.
Sami Amin AL-ARIAN Sameeh Hammoudeh Ghassan Zayed Ballut Hatim Naji Fariz No. 8:03-CR-77-T-30TBM. United States District Court, M.D. Florida. Tampa Division. March 12, 2004.

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Jeffrey Geldert Brown, Florin, Roebig & Walker, P.A., Palm Harbor, FL, Franklyn Louderback, Louderback and Helinger, St. Petersburg, FL, Sami Amin Al-Arian, pro se, FCI Coleman, Coleman, FL, Nicholas M. Matassini, The Matassini Law Firm, P.A., Tampa, FL, William B. Moffitt, Asbill Moffitt & Boss, Chtd., The Pacific House, Washington, DC, Linda G. Moreno, Law Office of Linda Moreno, Tampa, FL, for Sami Amin Al-Arian (1) aka Amin aka Abu Abdullah aka The Secretary, defendant.

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Richard P. Condon, Law Office Of Richard P. Condon, Kissimmee, FL, Stephen N. Bernstein, Stephen N. Bernstein, P.A., Gainesville, FL, Daniel Mario Hernandez, Law Office of Daniel M. Hernandez, Tampa, FL, for Sameeh Hammoudeh (4) aka Sameeh Hamouda aka Abu Anas, defendant.

Bruce G. Howie, Piper, Ludin, Howie & Werner, P.A., St. Petersburg, FL, Ghassan Zayed Ballut, Tinley Park, IL, for Ghassan Zayed Ballut (7) aka Abu Fadi, defendant.

Donald E. Horrox, Kevin T. Beck, M. Allison Guagliardo, Waffle E. Said, Federal Public Defender's Office, Middle District of Florida, Hatim Naji Fariz, Tampa, FL, for Hatim Naji Fariz (8) aka Abu Obayada aka Abu Obaida, defendant.

Walter E. Furr, U.S. Attorney's Office, Middle District of Florida, Tampa, FL, Daniel W. Eckhart, U.S. Attorney's Office, Middle District of Florida, Orlando, FL for U.S.

ORDER

MOODY, District Judge.

THIS CAUSE came before this Court upon:

1. Defendant Ballut's Motion to Dismiss or Strike Counts 1 through 4, 19, 36 through 38, and 40 through 42 (Dkt.# 200) and the government's response (Dkt.# 347) thereto;

2. Defendant Al — Arian's Motion to Dismiss Counts 1, 2, 3 and 4 of the Indictment (Dkt.# 245), the government's response (Dkt.# 346), and Al — Arian's reply (Dkt.# 425) thereto;

3. Defendant Fariz's Motion to Dismiss Count 44 of the Indictment (Dkt.# 250) and the government's response (Dkt.# 347) thereto;

4. Defendant Fariz's Motion to Strike Surplusage (Dkt.# 251) and the government's response (Dkt.# 340) thereto;

5. Defendant Fariz's Motion to Dismiss Count 1 of the Indictment (Dkt.# 255) and the government's response (Dkt.# 343) thereto;

6. Defendant Fariz's Motion to Strike as Surplusage as to Count 1, Paragraph 43, Subparagraphs (236), (240), (247), and (253) of the Indictment, and to Dismiss Counts 35, 37, 41, and 43 of the Indictment (Dkt.# 256) and the government's response (Dkt.# 340) thereto;

7. Defendant Al — Arian's Amended Motion to Dismiss Counts 1, 2, 3 and 4 of the Indictment (Dkt.# 273), the government's response (Dkt.# 346), and Al — Arian's reply (Dkt.# 425) thereto;

8. Defendant Fariz's Motion to Dismiss Counts 3 and 4 of the Indictment (Dkt.# 301) and the government's response (Dkt.# 345) thereto;

9. Defendant Fariz's Motion to Quash Section (b) of Paragraph 26 of the Indictment for Failure to State a Legal Basis for Relief (Dkt.# 302) and the government's response (Dkt.# 344) thereto;

10. Defendant Fariz's Request for Oral Argument on Defendant's Pretrial Motions (Dkt.# 303);

11. Defendant Hammoudeh's Motion to Dismiss Count 1 of the Indictment (Dkt.# 313) and the government's response (Dkt.# 343) thereto;

12. Defendant Hammoudeh's Amended Motion to Dismiss Count 1 of the Indictment (Dkt.# 330) and the government's response (Dkt.# 343) thereto;

13. Defendant Faiz's Motion for Reconsideration of Magistrate Judge's Order Denying in Part Fariz's Motion for Bill of Particulars (Dkt.# 440); and

14. Defendant Ballut's Motion for Reconsideration of Motion for Bill of Particulars (Dkt.# 441).

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I. BACKGROUND

A. FACTUAL AND PROCEDURAL BACKGROUND

This is a criminal action against alleged members of the Palestinian Islamic Jihad-Shiqaqi Faction (the "PIJ") who purportedly operated and directed fundraising and other organizational activities in the United States for almost twenty years. The PIJ is a foreign organization that uses violence, principally suicide bombings, and threats of violence to pressure Israel to cede territory to the Palestinian people. On February 19, 2003, the government indicted the Defendants¹ in a 50 count indictment that included counts for: (1) conspiracy to commit racketeering (Count 1); (2) conspiracy to commit murder, maim, or injure persons outside the United States (Count 2); (3) conspiracy to provide material support to or for the benefit of foreign terrorists (Counts 3 and 4); (4) violations of the Travel Act (Counts 5 through 44); (5) violation of the immigration laws of the United States (Counts 45 and 46); (6) obstruction of justice (Count 47);² and (7) perjury (Counts 48 through 50).³

Count 1 of the Indictment alleges a wide ranging pattern of racketeering activity beginning in 1984 lasting through February 2003, including murder, extortion, and money laundering.⁴ The Indictment details some 256 overt acts, ranging from soliciting and raising funds⁵ to providing management, organizational, and logistical support for the PIJ. The overt act section of the Indictment details numerous suicide bombings and attacks by PIJ members causing the deaths of over 100 people, including 2 American citizens, and injuries to over 350 people, including 7 American citizens. These same overt acts (or parts of them) support the remaining counts of the Indictment.

Each of the Defendants filed numerous pretrial motions primarily seeking the dismissal of Counts 1 through 4 of the Indictment and the striking of various overt acts or parts of overt acts as surplusage.⁶ The government opposed each motion. On January 21, 2004, this Court held oral argument. Additionally, Defendants Ballut and Fariz filed motions for reconsideration of the Magistrate's Order denying in part Defendants' motions for bill of particulars (Dkt.# 428).

B. STATUTORY BACKGROUND

Center stage in the motions are two statutes (along with the regulations, administrative designations, and executive orders associated with each): (1) the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132 ("AEDPA"); and (2) the International Emergency Economic

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Powers Act, 50 U.S.C. § 1701, et seq. ("IEEPA").

I. AEDPA

AEDPA authorizes the Secretary of State (the "Secretary"), in consultation with the Attorney General and the Secretary of the Treasury, to designate an organization as a Foreign Terrorist Organization ("FTO"). See 8 U.S.C. § 1189(a). Designation as a FTO has severe consequences to an organization, its members, and its supporters. For example, after designation, the Secretary of the Treasury may freeze all assets of a FTO in or controlled by a United States financial institution. See 8 U.S.C. § 1189(a)(2)(C). Additionally, representatives and certain members of FTOs may be barred from entry into the United States. See id. § 1182(a)(3)(B). More relevant to this case, the designation of an organization as a FTO has potential criminal ramifications on a FTO's suppirters.⁷ See 18 U.S.C. § 2339B(a)(1).

In passing AEDPA, Congress sought to prevent persons within the United States or subject to United. States' jurisdiction from providing material support to foreign organizations engaged in terrorist activities "to the fullest possible basis, consistent with the Constitution." AEDPA, Pub.L. No. 104-132, § 301(b). Under Section 2339B(a)(1), a person who:

knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and if the death of any person results, shall be imprisoned for any term of years or for life.

18 U.S.C. § 2339B(a)(1). The term "material support"⁸ is broadly defined in AEPA to mean "currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials."⁹ Id. § 2339A(b); id. § 2239B(g)(4). In passing such a broad prohibition, Congress found that FTOs "are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct." Pub.L. No. 104-132, § 301(a)(7).

In order to designate an organization a FTO under AEDPA, the Secretary must find that the: (a) organization is foreign; (b) organization engages in "terrorist activity,"¹⁰

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"terrorism,"¹¹ or has the capability and intent to engage in terrorist activity or terrorism; and (c) the terrorism or terrorist activity threatens either the security of United States nationals or national security. See 8 U.S.C. § 1189(a)(1). AEDPA provides no pre-designation notice to a potential FTO. See id. § 1189(a)(2)(A) (providing pre-designation notice by classified communication only to various congressional leaders). A designation takes effect upon publication. See id. § 1189(a)(2)(B)(i). A designation lasts for two years unless revoked by Congress or the Secretary. See id. §§ 1189(a)(2)(B)(ii), (a)(4)(A), (a)(5), (a)(6). The Secretary may renew a FTO designation every two years. See id. § 1189(a)(4)(B).

AEDPA limits the right, scope, basis and time period for judicial review by a FTO. See id. § 1189(b) (limiting judicial review to 30 days after designation based solely on the administrative record, unless the government wants to submit additional classified evidence ex parte, and limiting the scope of review that the United States Court of Appeals for the District of Columbia Circuit takes of a designation). Further, AEDPA precludes a criminal defendant's right to "raise any question concerning the validity of the...