U.S. v. Biheiri

• Decision Date: 19 October 2004
• Docket Number: No. 1:04CR201.,1:04CR201.
• Citation: 341 F.Supp.2d 593
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America, v. Soliman S. BIHEIRI, Defendant.

341 F.Supp.2d 593

UNITED STATES of America, v. Soliman S. BIHEIRI, Defendant.

No. 1:04CR201.

United States District Court, E.D. Virginia, Alexandria Division.

October 19, 2004.

COPYRIGHT MATERIAL OMITTED

David H. Laufman, United States Attorney's Office, Alexandria, VA, for Plaintiffs.

Ashraf Wajih Nubani, Busch & Nubani PC, Annandale, Meredith Ann Taylor, Coburn & Schertler, Washington, DC, for Defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

This is the second prosecution of this defendant that has included allegations related to terrorist financing. In the first, defendant was convicted of naturalization fraud, but the government fell short in its effort to impose on defendant either a terrorism-related sentencing enhancement pursuant to U.S.S.G. § 3A1.4, or an upward departure pursuant to U.S.S.G. § 5K2.0. This second prosecution, which focuses on allegations of false statements to federal investigators and the knowing possession and use of a fraudulently procured passport, also seeks, for a second time, to impose a § 3A1.4 sentencing enhancement on defendant. In response, defendant's various pre-trial motions raise substantial issues of vindictive and selective prosecution, double jeopardy, and collateral estoppel. This Memorandum Opinion addresses these issues.

I.

Defendant Soliman S. Biheiri is an Egyptian-born and Swiss-educated international financier who first came to the United States in 1985 on a six-month tourist visa. Thereafter, defendant made a series of false statements on various official forms and to government officials aimed at extending his stay in the United States and, ultimately, to obtain United States citizenship. During this period, defendant worked as an investment banker specializing in creating real estate investment opportunities for observant Muslims, whose religion forbids the charging or paying of interest. In this capacity, defendant established and operated BMI, Inc., a New Jersey-based holding company that directly, and through various subsidiary entities, invested in the development of housing projects.

In August 2003, defendant was charged in an indictment with (i) unlawful procurement of naturalization and (ii) swearing to false statements in his naturalization application.¹ He was convicted by a jury on both counts in October 2003, and as a result, stripped of his American citizenship. United States v. Biheiri, No. 1:03cr365 (E.D.Va. Dec. 18, 2003) (Order of Denaturalization). At sentencing, the government sought a sentencing enhancement pursuant to U.S.S.G. § 3A1.4, the provision applicable to offenses "involv[ing], or ... intended to promote, a federal crime of terrorism." In support of this proposed enhancement, the government presented evidence and argued:

(1) that defendant had dealt in the property of terrorists in violation of the International Emergency Economic Powers Act ("IEEPA")²; that these dealings were "relevant conduct"³ to the offenses of conviction; and

(a) that these dealings "involved, or [were] intended to promote, a federal crime of terrorism" under § 3A1.4; or

(b) that these dealings were "calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct" under Application Note 4 of § 3A1.4; and

(2) that defendant made false statements to government agents when, in a June 2003 interview at Dulles Airport, he denied having social or business relationships with certain individuals associated with terrorism or the financing of terrorism; that these false statements were "relevant conduct" to the offense of conviction; and that these false statements served to obstruct "an investigation of a federal crime of terrorism" under Application Note 2 of § 3A1.4.

To prove defendant's IEEPA violations that were the basis of arguments (1)(a) and (1)(b) above, the government adduced evidence that defendant had served as an investment banker for Mousa Abu Marzook, a leader of a Middle Eastern terrorist organization known as HAMAS.⁴ HAMAS and Marzook were each listed by the Department of State as a Specially Designated Terrorist (SDT) on January 25, 1995 and August 29, 1995, respectively.⁵ The government's documentary evidence showed that, both before and after Marzook's designation as an SDT, BMI and its subsidiaries made substantial deposits to bank accounts held by Mostan International Corp., an entity incorporated by defendant with Marzook as its president.

To prove the false statements relied on as the basis for argument (2) above, the government adduced the testimony of a federal agent who had interviewed defendant at Dulles International Airport on June 15, 2003, to show that, at the end of a 4 1/2 hour consensual interview, defendant denied having a social or business relationship with (a) Marzook, (b) Sami Al-Arian, a senior member of Palestinian Islamic Jihad, an SDT group,⁶ or (c) Youssef Nada and Bank Al-Taqwa, both SDTs.

As an alternative to a § 3A1.4 sentencing enhancement, the government sought an upward departure pursuant to U.S.S.G. § 5K2.0, the provision applicable to "aggravating or mitigating circumstance[s] ... of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines...." In support of this departure, the government advanced essentially the same matters urged in support of its § 3A1.4 claim. These matters, the government argued, were the qualifying "aggravating circumstances" required under § 5K2.0.

In the end, the government did not succeed in obtaining either the § 3A1.4 enhancement or the § 5K2.0 upward departure. See United States v. Biheiri, 299 F.Supp.2d 590 (E.D.Va.2004) ("Biheiri I").⁷ The record in Biheiri I reflects that the government ultimately abandoned and withdrew its § 3A1.4 arguments (1)(a) and (2) above, and pressed to conclusion only the § 3A1.4 argument described in (1)(b) above and the § 5K2.0 upward departure argument. Id. at 605-08, 610-11. With respect to these arguments, the Biheiri I record also reflects the following essential findings and conclusions pertinent here:

(1) that defendant had violated IEEPA by dealing in property of an SDT. Id. at 599-602;

(2) that the government had shown by a preponderance of the evidence that defendant had made a false statement to federal agents in violation of 18 U.S.C. § 1001(a), when, in the course of the June 15, 2003 interview at Dulles International Airport, he denied having a social or business relationship with Marzook. Id. at 601;

(3) that the government failed to show by a preponderance of the evidence that defendant made a false statement to federal agents in violation of 18 U.S.C. § 1001(a), when, in the course of that interview, he denied having social or business relationships with Al-Arian, Nada, or Bank Al-Taqwa. Id. at 601-02;

(4) that the government's § 3A1.4, Application Note 4 argument (1(b) above) failed because defendant's IEEPA violations were not "relevant conduct" to his naturalization fraud crimes, and, alternatively, that there was no evidence that defendant had intended to influence or affect government conduct by intimidation or coercion by engaging in financial transactions with terrorists. Id. at 605-08; and

(5) that the government's § 5K2.0 argument failed because defendant's IEEPA violations and false statement concerning his relationship with Marzook were irrelevant because they were not "circumstances or consequences" of his naturalization fraud crimes as required by § 5K2.0.⁸ No similar conclusion was necessary with respect to the alleged false statements regarding Al-Arian, Nada, and Bank Al-Taqwa, because the government did not prove those alleged false statements.

In May 2004, defendant was again indicted, this time on (i) two counts of making false statements in violation of 18 U.S.C. § 1001(a), based on his June 15, 2003 statements regarding Marzook and Al-Arian, and (ii) one count of willfully using a fraudulently procured passport in violation of 18 U.S.C. § 1546(a) and 1185(b). In July 2004, by superseding indictment, the false statement counts were modified to include the charge that defendant's statements obstructed an investigation of a federal crime of terrorism.⁹ These charges constitute the government's second attempt to use defendant's denials of his terrorist ties to obtain a sentencing enhancement under § 3A1.4. This time, however, the government seeks to avoid the pitfalls of Biheiri I by focusing directly on the alleged false statements rather than incorporating them as "relevant conduct" at the sentencing stage.¹⁰

On August 16, 2004, defendant moved to dismiss the superseding indictment on grounds of vindictive and selective prosecution, double jeopardy, and collateral estoppel, each of which is separately addressed here.

II.

The Constitution's command that the Executive Branch "take Care that the Laws be faithfully executed,"¹¹ confers broad prosecutorial discretion on that Branch; it is therefore, in general, left to the Executive Branch to determine whom to prosecute and for what offenses. See United States v. Lindh, 212 F.Supp.2d 541, 564 (E.D.Va.2002). And, importantly, a presumption of regularity attaches to the Executive Branch's prosecutorial decisions, so that "in the absence of clear evidence to the contrary, courts presume that [federal prosecutors] have properly discharged their official duties." United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (quoting United States v. Chemical Found., Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926)); Lindh, 212 F.Supp.2d at 564. Accordingly, the decision whether to prosecute a particular defendant on particular charges ordinarily rests entirely in the discretion of the Executive Branch. See Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); Lindh, 212 F.Supp.2d at 564.

Yet this broad prosecutorial discretion is neither limitless nor...