U.S. v. Bin Laden

• Decision Date: 29 May 2001
• Docket Number: No. S(7) 98 CR 1023 LBS.,S(7) 98 CR 1023 LBS.
• Citation: 146 F.Supp.2d 373
• Parties: UNITED STATES of America, v. Usama BIN LADEN, a/k/a "Usamah Bin-Muhammad Bin-Ladin," a/k/a "Shaykh Usamah Bin-Ladin," a/k/a "Abu Abdullah," a/k/a "Mujahid Shaykh," a/k/a "Hajj," a/k/a "Abdul Hay," a/k/a "al Qaqa," a/k/a "the Director," a/k/a "the Supervisor," a/k/a "the Contractor," Muhammad Atef, a/k/a "Abu Hafs," a/k/a "Abu Hafs el Masry," a/k/a "Abu Hafs el Masry el Khabir," a/k/a "Taysir," a/k/a "Sheikh Taysir Abdullah," a/k/a "Abu Fatimah," a/k/a "Abu Khadija," Ayman Al Zawahiri, a/k/a "Abdel Muaz," a/k/a "Dr. Ayman al Zawahiri," a/k/a "the Doctor," a/k/a "Nur," a/k/a "Ustaz," a/k/a "Abu Mohammed," a/k/a "Abu Mohammed Nur al-Deen," Mamdouh Mahmud Salim, a/k/a "Abu Hajer al Iraqi," a/k/a "Abu Hajer," Khaled Al Fawwaz, a/k/a "Khaled Abdul Rahman Hamad al Fawwaz," a/k/a "Abu Omar," a/k/a "Hamad," Ali Mohamed, a/k/a "Ali Abdelseoud Mohamed," a/k/a "Abu Omar," a/k/a "Omar," a/k/a "Haydara," a/k/a "Taymour Ali Nasser," a/k/a "Ahmed Bahaa Eldin Mohamed Adam," Wadih El Hage, a/k/a "Abdus Sabbur," a/k/a "Abd al Sabbur," a/k/a "Wadia," a/k/a "Abu Abdullah al Lubnani," a/k/a "Norman," a/k/a "Wa'da Norman," a/k/a "the Manager," a/k/a "Tanzanite," Ibrahim Eidarous, a/k/a "Ibrahim Hussein Abdelhadi Eidarous," a/k/a "Daoud," a/k/a "Abu Abdullah," a/k/a "Ibrahim," Adel Abdel Bary, a/k/a "Adel Mohammed Abdul Almagid Abdel Bary," a/k/a "Abbas," a/k/a "Abu Dia," a/k/a "Adel," Fazul Abdullah Mohammed, a/k/a "Harun," a/k/a "Harun Fazhl," a/k/a "Fazhl Abdullah," a/k/a "Fazhl Khan," Mohamed Sadeek Odeh, a/k/a "Abu Moath," a/k/a "Noureldine," a/k/a "Marwan," a/k/a "Hydar," a/k/a "Abdullbast Awadah," a/k/a "Abdulbasit Awadh Mbarak Assayid," Mohamed Rashed Daoud Al-`Owhali, a/k/a "Khalid Salim Saleh Bin Rashed," a/k/a "Moath," a/k/a "Abdul Jabbar Ali Abdel-Latif," Mustafa Mohamed Fadhil, a/k/a "Mustafa Ali Elbishy," a/k/a "Hussein," a/k/a "Hussein Ali," a/k/a "Khalid," a/k/a "Abu Jihad," Khalfan Khamis Mohamed, a/k/a "Khalfan Khamis," Ahmed Khalfan Ghailani, a/k/a "Fupi," a/k/a "Abubakary Khalfan Ahmed Ghailani," a/k/a "Abubakar Khalfan Ahmed," Fahid Mohammed Ally Msalam, a/k/a "Fahad M. Ally," Sheikh Ahmed Salim Swedan, a/k/a "Sheikh Bahamadi," a/k/a "Ahmed Ally," Defendants.
• Court: U.S. District Court — Southern District of New York

146 F.Supp.2d 373

UNITED STATES of America, v. Usama BIN LADEN, a/k/a "Usamah Bin-Muhammad Bin-Ladin," a/k/a "Shaykh Usamah Bin-Ladin," a/k/a "Abu Abdullah," a/k/a "Mujahid Shaykh," a/k/a "Hajj," a/k/a "Abdul Hay," a/k/a "al Qaqa," a/k/a "the Director," a/k/a "the Supervisor," a/k/a "the Contractor," Muhammad Atef, a/k/a "Abu Hafs," a/k/a "Abu Hafs el Masry," a/k/a "Abu Hafs el Masry el Khabir," a/k/a "Taysir," a/k/a "Sheikh Taysir Abdullah," a/k/a "Abu Fatimah," a/k/a "Abu Khadija," Ayman Al Zawahiri, a/k/a "Abdel Muaz," a/k/a "Dr. Ayman al Zawahiri," a/k/a "the Doctor," a/k/a "Nur," a/k/a "Ustaz," a/k/a "Abu Mohammed," a/k/a "Abu Mohammed Nur al-Deen," Mamdouh Mahmud Salim, a/k/a "Abu Hajer al Iraqi," a/k/a "Abu Hajer," Khaled Al Fawwaz, a/k/a "Khaled Abdul Rahman Hamad al Fawwaz," a/k/a "Abu Omar," a/k/a "Hamad," Ali Mohamed, a/k/a "Ali Abdelseoud Mohamed," a/k/a "Abu Omar," a/k/a "Omar," a/k/a "Haydara," a/k/a "Taymour Ali Nasser," a/k/a "Ahmed Bahaa Eldin Mohamed Adam," Wadih El Hage, a/k/a "Abdus Sabbur," a/k/a "Abd al Sabbur," a/k/a "Wadia," a/k/a "Abu Abdullah al Lubnani," a/k/a "Norman," a/k/a "Wa'da Norman," a/k/a "the Manager," a/k/a "Tanzanite,"

Ibrahim Eidarous, a/k/a "Ibrahim Hussein Abdelhadi Eidarous," a/k/a "Daoud," a/k/a "Abu Abdullah," a/k/a "Ibrahim," Adel Abdel Bary, a/k/a "Adel Mohammed Abdul Almagid Abdel Bary," a/k/a "Abbas," a/k/a "Abu Dia," a/k/a "Adel," Fazul Abdullah Mohammed, a/k/a "Harun," a/k/a "Harun Fazhl," a/k/a "Fazhl Abdullah," a/k/a "Fazhl Khan," Mohamed Sadeek Odeh, a/k/a "Abu Moath," a/k/a "Noureldine," a/k/a "Marwan," a/k/a "Hydar," a/k/a "Abdullbast Awadah," a/k/a "Abdulbasit Awadh Mbarak Assayid," Mohamed Rashed Daoud Al-`Owhali, a/k/a "Khalid Salim Saleh Bin Rashed," a/k/a "Moath," a/k/a "Abdul Jabbar Ali Abdel-Latif," Mustafa Mohamed Fadhil, a/k/a "Mustafa Ali Elbishy," a/k/a "Hussein," a/k/a "Hussein Ali," a/k/a "Khalid," a/k/a "Abu Jihad," Khalfan Khamis Mohamed, a/k/a "Khalfan Khamis," Ahmed Khalfan Ghailani, a/k/a "Fupi," a/k/a "Abubakary Khalfan Ahmed Ghailani," a/k/a "Abubakar Khalfan Ahmed," Fahid Mohammed Ally Msalam, a/k/a "Fahad M. Ally," Sheikh Ahmed Salim Swedan, a/k/a "Sheikh Bahamadi," a/k/a "Ahmed Ally," Defendants.

No. S(7) 98 CR 1023 LBS.

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

May 29, 2001.

Mary Jo White, United States Attorney for the Southern District of New York, Patrick J. Fitzgerald, Kenneth M. Karas, Paul W. Butler, Assistant United States Attorneys, New York City, for Plaintiff U.S.

Frederick H. Cohn, David Preston Baugh, Laura Gasiorowski, New York City, for Defendant Al-`Owhali.

David A. Ruhnke, David Stern, New York City, for Defendant Khalfan Khamis Mohamed.

Sam A. Schmidt, Joshua L. Dratel, Kristian K. Larsen, New York City, for Defendant El Hage.

Anthony L. Ricco, Edward D. Wilford, Carl J. Herman, Sandra A. Babcock, New York City, for Defendant Odeh.

OPINION

SAND, District Judge.

During the guilt phase of this case, the Court took two actions with respect to venue. First, in a ruling from the bench on April 23, 2001, we dismissed for lack of venue Count 308 of the Indictment¹ which alleges a violation of 18 U.S.C. § 1001(a)(2). Second, in our charge to the jury delivered on May 9-10, 2001, we submitted 18 U.S.C. § 3238 as the sole basis upon which to determine venue for the four conspiracy counts.² This Opinion sets forth in detail the Court's reasons for those two decisions.

I. DISMISSAL OF THE FALSE STATEMENT COUNT³

Count 308 of the Indictment charged Defendant Wadih El Hage with a violation of 18 U.S.C. § 1001(a)(2) — that is, knowingly and willfully making a materially false statement to the Federal Bureau of Investigation. Section 1001(a)(2) provides, in relevant part, that:

[W]hoever, in any matter within the jurisdiction of the executive ... branch of the Government of the United States, knowingly and willfully ... makes any materially false, fictitious, or fraudulent statement or representation ... shall be fined under this title or imprisoned not more than 5 years, or both.

The evidence adduced at trial showed that, on August 20, 1998, Special Agents of the FBI conducted two face-to-face interviews of Mr. El Hage. The first interview occurred in the afternoon at Mr. El Hage's home in Arlington, Texas, and the second occurred later that same evening at the FBI's Dallas field office. (Trial Tr. at 3045-46.) During those interviews, Mr. El Hage stated that he did not personally know Mohamed Sadeek Odeh, a co-defendant in this case. Furthermore, when shown two photographs of Odeh, Mr. El Hage stated that he did not recognize the depicted individual. (Trial Tr. at 3051-53.) To establish its criminal allegations under Count 308, the Government offered at trial substantial testimonial and documentary evidence that Mr. El Hage's statements to the FBI in Texas were in fact false. See, e.g., GX 213A-T (translation of a wiretapped February 1997 telephone conversation between El Hage and Odeh); see also Gov't Summ. of Proof (Apr. 5, 2001) at 15 (listing the Government's proof as to Count 308).

On April 12, 2001, during oral argument on defendants' various motions for judgments of acquittal, counsel for Mr. El Hage challenged venue as to Count 308. (Trial Tr. at 3927-30.) Briefing papers were thereafter submitted by the Government on April 16, and by Mr. El Hage on April 19 and 20. Ultimately, in a ruling from the bench on April 23, the Court granted the motion and dismissed Count 308. (Trial Tr. at 4545-46.)

A. Continuing Offense Theory

The Government argues that venue for Count 308 is properly laid in the Southern District of New York because the crime of making false statements can be considered a continuing offense under 18 U.S.C. § 3237.⁴ While this general assertion may be true in some circumstances, the specific facts pertaining to Mr. El Hage indicate that it is inapposite here.

An examination of all the cases cited by the Government reveals why those courts found the section 1001 violation before them to be "continuing" for purposes of section 3237 venue. In each of those decisions, the shared factual characteristic is that there existed a geographic discontinuity between the defendant's physical making of the disputed statement, whether oral or written, and the actual receipt of that statement by the relevant federal authority.

For example, in United States v. Candella, 487 F.2d 1223 (2d Cir.1973), the defendants were convicted in the Southern District of New York of submitting false affidavits and bills of lading in a matter within the jurisdiction of the United States Department of Housing and Urban Development (HUD). The falsified documents were prepared, executed, and hand-delivered by the defendants to unspecified New York City officials in Brooklyn. These officials in turn conveyed the documents to the Manhattan office of the city agency responsible for reviewing and processing defendants' documents on behalf of HUD. Although the Court of Appeals agreed that the false statements offenses had begun in the Eastern District of New York (Brooklyn), it held that the crimes were complete upon their receipt in the Southern District of New York (Manhattan). See id. at 1227-28. Tellingly, the Candella court equated the role played by the unnamed city officials in Brooklyn with that of the post office. See id. at 1228. Venue in the Southern District of New York was thus found to be appropriate under section 3237.

All of the other Second Circuit cases relied upon by the Government similarly involve geographic discontinuities between the making of the false statement and its receipt by the appropriate federal authority. See United States v. Fabric Garment Co., 262 F.2d 631 (2d Cir.1958) (false forms to the New York Quartermaster Procurement Agency dispatched from Brooklyn, but received in Manhattan); United States v. Kouzmine, 921 F.Supp. 1131 (S.D.N.Y. 1996) (false visa application to the Immigration and Naturalization Service filed in the District of Vermont, but completed in the Southern District of New York); United States v. Culoso, 461 F.Supp. 128 (S.D.N.Y.1978) (false loan application to the Small Business Administration prepared in the Eastern District of New York, but submitted in Manhattan); see also United States v. Stephenson, 895 F.2d 867 (2d Cir.1990) (false statements over the telephone; defendant in the District of Columbia, but federal agent in New York).

In marked contrast, Mr. El Hage's allegedly false statements to the FBI were uttered and received wholly inside Texas. Since there was no geographic (or even temporal) discontinuity, the offense charged in Count 308 began, continued, and was completed in just one federal judicial district — i.e., the Northern District of Texas. Perhaps most revealing is the fact that among the four offense elements necessary to prove Mr. El Hage's section 1001(a)(2) violation, not one involves evidence arising out of this judicial district.⁵ We thereby conclude, on the specific facts of this case as they are applicable to Count 308, that 18 U.S.C. § 3237 affords no basis for venue in the Southern District of New York.

B. Effects of the Offense Theory

As a secondary argument, the Government relies on United States v. Reed, 773 F.2d 477 (2d Cir.1985), for the proposition that the external effect of Mr. El Hage's criminal conduct under Count 308 independently gives rise to venue in a district alternative to the one in which he performed the acts constituting the offense. Even assuming that Mr. El Hage's false statements to the FBI in Texas somehow impacted the investigation in the Southern District of New York,⁶ the Court finds no basis for applying Reed to the instant case.

Thomas Reed was indicted in the Southern District of New York for, inter alia, perjury⁷ and obstruction of justice⁸ in connection with deposition testimony given by him in a civil fraud action pending in the same district. However, because Reed's deposition was taken in San...